State v. Burleson

184 S.E.2d 869 (1971)

280 N.C. 112

STATE of North Carolina v. Steven Michael BURLESON.

No. 141.

Supreme Court of North Carolina.

December 15, 1971.

*872 Atty. Gen. Robert Morgan and Asst. Attys. Gen. Edward L. Eatman, Jr., and Richard N. League, Raleigh, for the State.

Morgan, Byerly, Post & Herring, by James F. Morgan, High Point, for defendant-appellant.

BOBBITT, Chief Justice.

No question is presented as to the sufficiency of the evidence to support the verdict. The State's evidence that defendant was guilty as charged in the bill of indictment was positive and plenary.

Under the heading, "Assignments of Error," defendant asserts the court erroneously failed to charge the jury in the three respects discussed below.

Since no exception appears in the case on appeal, there is no basis in the record for consideration of the assertions denominated "Assignments of Error." "An assignment of error not supported by an exception is ineffectual and will not be considered on appeal." State v. Jones, 278 N. C. 259, 264, 179 S.E.2d 433, 437 (1971), and cases cited. Notwithstanding his failure to comply with established procedural requirements, the seriousness of the crime and the age of the defendant impel us to examine and consider defendant's purported "Assignment of Error."

There is no merit in defendant's first assertion, that the court erroneously failed to submit "the lesser included offense of assault with intent to commit rape." The following statement from State v. Rhodes, 275 N.C. 584, 592, 169 S.E.2d 846, 851 (1969), applies with equal force to the present case: "All the evidence tended to show an accomplished rape and to prove defendant's guilt beyond a reasonable doubt. Neither the State nor defendant offered any evidence upon which a verdict of guilty of the lesser and included offense of assault with intent to commit rape could have been based. The judge was not required to submit that issue to the jury, and a request to do so would have been properly refused."

There is no merit in defendant's second assertion, that the court erroneously failed to charge the jury "that an affirmative defense must be proved to the satisfaction of the jury instead of beyond a reasonable doubt." We find no basis in the record for this assertion. On the contrary, it appears that the court placed no burden of proof on defendant in respect of an affirmative defense. The following excerpt from the charge indicates the court's instructions pertinent to that aspect of the case: "[T]he court . . . instructs you that if you should find that on the occasion of which the State complains that the defendant, by reason of sniffing glue or drinking beer, or both, did not have the mental capacity sufficient to form a criminal intent, and that he had not previously formed a criminal intent to rape Marguerite Patterson, and had thereafter participated in sniffing glue or drinking beer, that it would be your duty to return a verdict of not guilty." Obviously, this instruction was not prejudicial to defendant.

There is no merit in defendant's third assertion, that the court had erroneously failed to charge the jury "that they should disregard the testimony of the mother and grandmother in regard to their being assaulted, except in that it shows force used in the alleged rape, the assault charges being a matter for another court." Nothing in the record suggests that defendant was on trial for assaults on Mrs. Patterson and Mrs. Bryant. The evidence as to what defendant did to them was incidental and preliminary to his rape of Marguerite. All that occurred in the Patterson residence from the time of defendant's violent entry until the consummation of the rape was competent and relevant as part of the res gestae. Testimony as to defendant's assaults *873 upon Mrs. Patterson and upon Mrs. Bryant was competent inter alia to explain their removal from the scene and consequent inability to interfere when Marguerite was raped.

Finding no error of law, the verdict and judgment will not be disturbed.

No error.