State v. Littlejohn

198 S.E.2d 11 (1973)

19 N.C. App. 73

STATE of North Carolina v. Oliver Wendell LITTLEJOHN.

No. 7327SC535.

Court of Appeals of North Carolina.

July 25, 1973.

Certiorari Denied and Appeal Dismissed October 2, 1973.

*12 Atty. Gen., Robert Morgan and Asst. Atty. Gen., Rafford E. Jones, Raleigh, for the State.

Robert G. Summey, Forest City, for defendant appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court October 2, 1973.

HEDRICK, Judge.

By his fourth and seventh assignments of error, defendant contends the court erred in "elaborating too greatly" the contentions of the State and "failing to properly charge the contentions of the defendant". We do not agree.

"If defendant desired fuller instructions as to the evidence or contentions, he should have so requested. His failure to do so now precludes him from assigning this as error." (Citations omitted) State v. Sanders, 276 N.C. 598, 617, 174 S.E.2d 487, 500 (1970); reversed on other grounds, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971).

A misstatement of the evidence or contentions of the defendant, not called to the court's attention, may not be the basis of a proper assignment of error. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970). Nevertheless, a careful examination of the charge as a whole leads us to the conclusion that the court fully and fairly instructed the jury as to the evidence and the contentions of the parties and declared the law applicable thereto.

By his fifth assignment of error, defendant contends the trial court did not properly charge that the use of a firearm is a necessary element of the crime of armed robbery.

The charge is replete with instructions that the use of a firearm is a necessary element of the crime of armed robbery. This assignment of error has no merit.

Defendant next contends the court erred to his prejudice in charging the jury as follows: "The burden of proving an alibi does not rest upon the defendant to establish the defendant's guilt."

Thereafter, the trial court properly charged the jury as to the burden of proof as to the defense of alibi. The specific sentence complained of by appellant was simply lapsus linguae and not prejudicial. State v. Sanders, 280 N.C. 81, 185 S.E.2d 158 (1971). The court charged in several places that appellant contended he was someplace else, and that the State had the burden of proving his presence. This is a correct instruction on alibi. State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972).

Defendant assigns as error the denial of his motion to poll the jury.

"In order to determine whether the verdict of the jury is unanimous, it is the right of every defendant to have the jury polled. State v. Young, 77 N.C. 498; State v. Boger, 202 N.C. 702, 163 S.E. 877. However, this right must be exercised at the time the jury returns its verdict or before the jury is discharged, otherwise the right is deemed to have been waived. State v. Toole, 106 N.C. 736, 11 S.E. 168." State v. Cephus, 241 N.C. 562, 564, 86 S.E.2d 70, 71 (1955).

*13 This assignment of error is not sustained since the record clearly shows the defendant's motion to poll the jury was first made after the jury had been discharged and some of the jurors had been selected for the trial of a "first degree case" and others had left the courtroom.

Defendant has other assignments of error which we have carefully considered and find to be without merit.

Defendant had a fair trial free from prejudicial error.

No error.

CAMPBELL and BALEY, JJ., concur.