State v. Carter, 7426SC807

• Decision Date: 18 December 1974
• Docket Number: No. 7426SC807,7426SC807
• Citation: 24 N.C.App. 292,210 S.E.2d 264
• Parties: STATE of North Carolina v. Willie CARTER.
• Court: North Carolina Court of Appeals

Page 264

210 S.E.2d 264

24 N.C.App. 292

STATE of North Carolina v. Willie CARTER.

No. 7426SC807.

Court of Appeals of North Carolina.

Dec. 18, 1974.

Atty. Gen. James H. Carson, Jr., by Associate Atty. Gen. W. A. Raney, Raleigh, for the State.

Hamel, Cannon & Hamel, by William F. Hamel, Charlotte, for defendant-appellant.

BROCK, Chief Judge.

In his thirteenth assignment of error, defendant contends that the trial judge erred when he charged the jury:

'Your verdict must be unanimous. All twelve must agree before it is a jury verdict.

'. . . When all twelve are in agreement as to what your verdict is, you will indicate it by knocking on the door. . . .'

Defendant argues that this portion of the charge 'left no room open for the jury to disagree.'

We believe that the jury could not have interpreted that portion of the charge to mean that there could be no disagreement. The State argues that knowledge of disagreement among jurors is so pervasive in our society that no juror could misunderstand such statements. We agree. This assignment of error is overruled.

In his fourteenth assignment of error, defendant asserts that the trial court erred when it failed to give defendant an alibi instruction notwithstanding his failure to request it. The evidence offered by defendant tended to show that he was elsewhere when Mrs. Johnson was slain. Although this evidence was reviewed fully by the court, no specific instruction was given the jury as to the specific principles applicable to the defense of alibi.

It was formerly the rule in North Carolina that failure to give an alibi instruction was prejudicial error, even if defendant had not specifically requested the instruction. State v. Vance, 277 N.C. 345, 177 S.E.2d 389; State v. Leach, 263 N.C. 242, 139 S.E.2d 257; State v. Gammons, 258 N.C. 522, 128 S.E.2d 860; State v. Spencer, 256 N.C. 487, 124 S.E.2d 175; State v. Melton, 187 N.C. 481, 122 S.E. 17. However, in State v. Hunt, 283 N.C. 617, 197 S.E.2d 513, the Supreme Court overruled those decisions in respect of that rule and 'reached the conclusion that reason and authority support a different rule, namely, that the court Is not required to give such an instruction unless it is requested by the defendant.' 283 N.C. at 618, 197 S.E.2d at 515.

Because defendant made no request for an alibi instruction, he may not now complain. This assignment of error is overruled.

We have carefully reviewed defendant's remaining fourteen assignments of error and...