State v. Davis

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN
• Citation: State v. Davis, 238 N.C. 252, 77 S.E.2d 630 (N.C. 1953)
• Decision Date: 23 September 1953
• Docket Number: No. 2,2
• Parties: STATE, v. DAVIS.

Page 630

77 S.E.2d 630

238 N.C. 252

STATE, v. DAVIS.

No. 2

Supreme Court of North Carolina.

Sept. 23, 1953

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

Allen, Henderson & Williams, Elkin, for defendant appellant.

DEVIN, Chief Justice.

The defendant's motion for judgment as of nonsuit was properly denied. The evidence was sufficient to carry the case to the jury. State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.

The defendant's assignments of error based upon exceptions noted to rulings of the court in the admission of testimony are without merit. The court's general charge to the jury was free from error, but the defendant noted exception to subsequent instructions given to the jury by the court in response to inquiry from a juror. The circumstances were these: The jury apparently had experienced difficulty in arriving at a verdict. Several times they reported disagreement but were instructed to continue their deliberations. On one of those occasions a juror asked to speak to the Court. The Court replied he could not have a private conversation with a juror, 'You have to return a verdict of guilty or not guilty and no more.' However, the Court stated if the jury was confused as to a matter of law bearing on the case, he would be glad to give further instructions. Thereupon the foreman asked 'Would it be within our rights to ask mercy in this case in rendering the verdict?' To this the Court replied as follows: 'Your responsibility is to answer whether or not you find the defendant guilty or not guilty. The matter of the judgment to be pronounced upon the verdict is entirely the responsibility of the judge, and it is not part of your responsibility at all; in arriving at your verdict, you arrive at a verdict of guilty or not guilty according as you find the facts from the evidence and apply the law as given you by the Court. You may retire and deliberate further.' Thereafter the jury returned verdict of guilty, and the Court rendered the judgment appealed from.

The exceptions based on these expressions of the trial judge afford insufficient basis upon which to award a new trial.

Evidently some of the jurors were unwilling to agree to a conviction, and if the judge had expressly authorized the jury to recommend mercy in rendering their verdict, it would doubtless have been understood as an intimation that if they agreed to such a verdict the court would be...