State v. May

205 S.E.2d 355 (1974)

22 N.C. App. 71

STATE of North Carolina v. Thomas MAY and Reginald Gatlin.

No. 743SC204.

Court of Appeals of North Carolina.

June 5, 1974.

*356 Atty. Gen. Robert Morgan by H. A. Cole, Jr., Asst. Atty. Gen., Raleigh, for the State.

Laurence S. Graham and Nelson B. Crisp, Greenville, for defendant appellants.

VAUGHN, Judge.

Since defendant May brings forward no assignments of error, his appeal only raises the question of whether error appears on the face of the record. State v. McIlwain, 279 N.C. 469, 183 S.E.2d 538. Defendant was tried under an indictment proper in form by a duly constituted court, the verdict supports the judgment, and defendant was sentenced to a prison term within the applicable statutory limits.

Defendant Gatlin's only argument is that he contends the verdict does not support the judgment against him. Defendant bases his argument on the fact that the jury foreman stated the verdict as "Guilty of controlled substance, marijuana," omitting the term "possession." The clerk then asked "Guilty of possession of a controlled substance, marijuana? And this is your verdict, so say you all?" The jury response was "Yes, sir." We hold that the verdict supports the judgment. A jury's pronouncement is not a verdict until it is accepted by the court. State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651. Since the foreman's initial statement which failed to refer to possession was not accepted without clarification, it was not a verdict. Moreover, contrary to defendant's assertions, the clerk did not improperly suggest a verdict to the jury but rather asked a question. See Davis v. State, 273 N.C. 533, 160 S.E.2d 697; State v. Martin, 17 N.C.App. 317, 194 S.E.2d 60, cert. den., 283 N.C. 259, 195 S.E.2d 691. When the sequence upon which defendant's objection is based is considered in terms of the issue being tried and the evidence, it is apparent that the jury intended to convict the defendant of something. The clerk's inquiry and the jury's response enabled the court to determine precisely what that something was. See Davis v. State, supra; State v. Sears, 235 N.C. 623, 70 S.E.2d 907. We also note that defendant declined to exercise his right to poll the jury.

We find no prejudicial error in the trials from which defendants appealed.

No error.

CAMPBELL and MORRIS, JJ., concur.