State v. Bynum

193 S.E.2d 725 (1973)

282 N.C. 552

STATE of North Carolina v. Paul Lester BYNUM, Jollie Coley. STATE of North Carolina v. Jollie COLEY.

No. 60.

Supreme Court of North Carolina.

January 26, 1973.

*727 Robert Morgan, Atty. Gen., by Burley B. Mitchell, Jr., Charles A. Lloyd, Asst. Attys. Gen., for the State.

Samuel S. Mitchell, Raleigh, for defendant appellants.

*728 HIGGINS, Justice.

The defendants' original brief, by exceptions and assignments of error, presents these questions for review:

"1. Did the Court below err in refusing to grant defendants' motions for nonsuit? "2. Did the Court below err in its charge to the jury on the element of force in kidnapping? "3. Did the Court below err by not instructing the jury on lesser crimes included under a rape indictment? "4. Did the Court below err by putting defendants on trial for a capital offense? "5. Did the Court below err by abusing its discretion in not sequestering the jury?"

The defendants' supplemental brief lists the following as questions involved:

"1. Did the Court err by an unauthorized search and seizures without a warrant? "2. Did the Court err by using a coerced confession without a signature, and not letting the defendants challenge it? "3. Did the Court err by Double Jeopardy? "4. Did the Court err by not recording the Solicitor arguments to the jury so the defendants could challenge it? "5. Did the Court err by not having a doctor report? "6. Did the Court err by not looking upon that Miss Adams was thumbling (sic) and smoking marijuana the night we came in touch or contact with her?"

Miss Adams testified she was forced into the automobile, driven to a secluded spot on a side road, and forced to submit to an act of intercourse by each defendant. Immediately after her release she entered the home of strangers in a state of shock and had the officers called. The defendants testified as witnesses in their own defense. Both admitted they picked up Miss Adams, whom they did not know, because she was thumbing a ride. They drove to a side road where both had intercourse with her. Both claimed that all acts were with her consent.

The material factual disputes involved the issue whether the intercourse was voluntary or the result of force. The conflict in the testimony required its resolution by the jury. The jury chose to believe the victim. The court placed upon the State the burden of proving beyond a reasonable doubt all essential elements of the offenses charged and instructed the jury the failure of the State to carry the burden required a verdict of not guilty. There was no evidence of any included lesser offenses embraced within the indictments and hence the court was under no duty to charge on lesser included offenses.

In State v. Davis, 282 N.C. 107, 191 S.E.2d 664, Justice Moore for this Court, stated the rule: "The necessity for charging on the crime of a lesser degree arises only when there is evidence from which the jury could find that a crime of lesser degree was committed. (Citing authorities.)"

The Court in State v. McNeil, 277 N.C. 162, 176 S.E.2d 732, said: "The defendant was not prejudiced by the charge which required the jury to acquit of all included lesser offenses. There was no evidence of the lesser included offenses, and the court was correct in refusing to permit the jury to consider them." The same language was repeated in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111. (Certiorari denied by the Supreme Court of the United States, 409 U.S. 995, 93 S. Ct. 328, 34 L. Ed. 2d 259, decided November 6, 1972.)

*729 The defendants were placed on trial for kidnapping, a felony, and for rape, designated by G.S. § 14-21 as a capital felony with provision that if the trial jury should so recommend, the punishment should be imprisonment for life in the State's prison. The jury recommended and the court imposed the life imprisonment sentences. The defendants, therefore, are without standing to challenge the validity of a death sentence. Only the party aggrieved by the judgment may appeal. 1 Strong's N.C.Index 2d, Appeal and Error, § 7, p. 123.

The record discloses that the jury deliberated for about fifty minutes after the completion of the court's charge. The court then recalled the jury to the courtroom, instructed them not to discuss the case among themselves or with any member of their families, or with anyone else, and that they should not read about or listen to any discussion of the case. Attorney Mitchell suggested to the court:

"MR. MITCHELL: Your Honor, before they leave, I was wondering if any security should be taken for the jury during the night. "THE COURT: I don't know of any reason why it should. Do you have anything to suggest such as any impropriety in any way? "MR. MITCHELL: No, sir, I am not talking about anything that has already happened. I'm thinking about the security that the court usually takes.. . . Not that it has happened, Your Honor."

The court, after detailed admonition and cautions, permitted the jury, composed of three women and nine men, to return to their homes for the night. The jury returned next morning and after deliberation, returned the verdicts heretofore disclosed. The court did not abuse its discretion in permitting the jurors to return to their homes for the night. Nothing indicates, or even suggests, any impropriety on the part of any juror.

We have examined the entire record and considered all matters properly raised by exceptions and assignments of error. After full consideration of all matters of law or legal inference arising on the record, we are unable to find prejudicial error in any particular.

No error.

BOBBITT, Chief Justice (dissenting).

For the reasons set forth in my dissenting opinion in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972), it is my opinion that defendants are entitled to a new trial because of the court's failure to submit guilty of assault with intent to commit rape as permissible verdicts.

SHARP, J., joins in this dissenting opinion.