State v. Griffin

• Decision Date: 15 December 1971
• Docket Number: No. 79,79
• Citation: 185 S.E.2d 149,280 N.C. 142
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Gaston GRIFFIN.

Page 149

185 S.E.2d 149

280 N.C. 142

STATE of North Carolina v. William Gaston GRIFFIN.

No. 79.

Supreme Court of North Carolina.

Dec. 15, 1971.

Hatch, Little, Bunn, Jones & Liggett by E. Richard Jones, Jr., Raleigh, for defendant-appellant.

Robert Morgan, Atty. Gen., and Charles M. Hensey, Asst. Atty. Gen., for the State.

HUSKINS, Justice.

Defendant's first assignment of error is addressed to the following portion of the charge: 'The defendant and his mother testified in his behalf during the trial of the case. I charge you that as you consider the evidence, and the testimony of those witnesses, the defendant and his mother, that you should scrutinize and closely examine the testimony of each of them and of any witness who has an immediate personal interest in the outcome of your verdict, but that after you do so, if you find that you believe the evidence of such a witness, then you should give to that evidence the same weight and credit that you would to the evidence or testimony of any other disinterested witness whose testimony has been presented to you.' Defendant argues that it is not the province of the trial judge to single out and designate any particular witness as an Interested witness; rather, it is exclusively the function of the jury to decide which witness, if any, has a personal interest in the outcome of the case.

Instructions couched in substantially similar language are fully supported by our decisions. 'There is no hard and fast form of expression, or consecrated formula required, but the jury should be instructed that, as to the testimony of relatives or parties interested in the case and defendants, the jury should scrutinize their testimony in the light of that fact; but if, after such scrutiny, the jury should believe that the witness has told the truth, they should give him as full credit as if he were disinterested.' State v. Green, 187 N.C. 466, 122 S.E. 178 (1924). Accord, State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943); State v. Turner, 253 N.C. 37, 116 S.E.2d 194 (1963); State v. Choplin, 268 N.C. 461, 150 S.E.2d 851 (1966).

The charge complained of did not constitute an expression of opinion upon the credibility of defendant or his mother in violation of G.S. § 1--180. The admonition to scrutinize included not only the defendant and his mother but also the testimony 'of Any witness who has an immediate personal interest in the outcome' of the verdict. There is no merit in defendant's position, and his first assignment is overruled.

The court limited the jury in its deliberations to one of three verdicts, to wit: guilty of rape as charged, guilty of rape with recommendation that the punishment be life imprisonment, or not guilty. Defendant assigns as error the failure of the court to submit the lesser included offenses of assault with intent to commit rape and assault on a female.

It is firmly established by decisions of this Court that a defendant is entitled to have the different permissible verdicts Arising on the evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Error in failing to submit the question of a defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees Arising on the evidence had been correctly presented in the charge. State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955); State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947). However, this principle applies when, and only when, there is evidence of guilt of the lesser...