State v. Best

• Decision Date: 26 May 1971
• Docket Number: No. 718SC48,718SC48
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Milton BEST.

Page 138

181 S.E.2d 138

11 N.C.App. 286

STATE of North Carolina v. Milton BEST.

No. 718SC48.

Court of Appeals of North Carolina.

May 26, 1971.

Certiorari Denied by Supreme Court July 30, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Myron C. Banks, and Staff Atty. Ronald M. Price, Raleigh, for the State.

Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant appellant.

MALLARD, Chief Judge.

Defendant assigns as error the refusal of the trial court to sustain his motion for nonsuit. There was ample evidence to require submission of this case to the jury, and this assignment is overruled.

Defendant also assigns as error certain portions of the charge. He contends that the court improperly charged the jury on the offense of attempted common-law robbery and asserts that there was no evidence as a basis for such a charge. He contends that the evidence in the record supports only a charge of attempted armed robbery. We do not agree. The evidence of the State's witness Bright was conflicting on whether defendant Best knew that he, Bright, had a firearm before the four of them entered the store and whether defendant Best had knowledge that a firearm was to be used in the robbery. The robbery they had planned was not completed and ended as an attempt to rob. Therefore, it was proper for the judge to instruct the jury on an attempt to commit common-law robbery in addition to attempted robbery with firearms (see State v. Bailey, 4 N.C.App. 407, 167 S.E.2d 24 (1969)). Moreover, in State v. Quick, 150 N.C. 820, 64 S.E. 168 (1909), the Supreme Court said:

'Suppose the court erroneously submitted to the jury a view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the state, and not to him.'

See also State v. Chase, 231 N.C. 589, 58 S.E.2d 364 (1950).

As to the defendant's other exceptions to the charge, it is said in State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971), that '(a) charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct.' When the charge in the case at bar is thus considered, we find no prejudicial error.

The defendant contends that the trial court imposed punishment on him 'because of his plea of not guilty and demand for trial by jury.' He argues that this was evidenced when (1) the court ordered him into custody during recesses of the trial; (2) after conviction, the court received testimony of accomplices for the purpose of imposing punishment; (3) after hearing defendant's plea of leniency, the judge remarked, 'The first step in rehabilitation is an admission of guilt'; (4) ordered defendant into custody of the Department of Correction until he was released on $4,000 bail pending appeal; and (5) gave the State's witness Bright a seven-to-ten-year prison sentence and put him on probation after Bright had subsequently entered a plea of guilty to attempted common-law robbery. These contentions are without merit.

It is elementary that upon a plea of not guilty, the only way for a person charged with crime to be tried in the superior courts of this State is by jury. Therefore, one does not have to 'demand' a jury trial in a criminal case in superior court.

The record does not reveal why the judge ordered the defendant into custody. The defendant does not contend that this was done in the presence of the jury or that the jury knew whether or not he was in custody. Neither is it contended that ordering the defendant into custody constituted an unwarranted burden upon him and his counsel in the conduct of the case. In 8 Am.Jur.2d, Bail and Recognizance, § 25, it is said:

'It is the general rule in the states that the trial court has the right, in its discretion, to order a defendant who has been at large on bail into custody during the trial, or during recess, even though the offense of which the defendant is charged is bailable. * * *'

And in 23 C.J.S. Criminal Law § 977, it is stated: 'It is within the discretion of the trial court whether accused should be placed in custody.' See also State v. Mangum, 245 N.C. 323, 96 S.E.2d 39 (1957), and State v. Smith, 237 N.C. 1, 74 S.E.2d 291 (1953). In State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968), Justice Sharp said:

'Historically, the presumption has been that a judge will act fairly, reasonably, and impartially in the performance of the duties of his office, State v. Young, Supra. On entire judicial system is based upon the faith that a judge will keep his oath. 'Unless the contrary is made to appear, it will be presumed that judicial acts and duties have been duly and regularly performed.' 1 N.C. Index 2d, Appeal and Error § 46 (1967). Since, however, All judges are human, from time to time one or more will err.

Notwithstanding, we have no choice but to make men judges. Judge Curtis Bok, in his book, I Too Nicodemus, said that the real crime of criminals was that they 'have made it necessary to judge them and have so tarnished those who do it.' So long as errants make it necessary for other men to judge them it is best to indulge the presumption that a judge will do what a judge ought to do. Actually we have no other choice. Furthermore, men seek to justify the confidence they believe to be reposed in them.

It would demean the entire...