State v. Ingland
Decision Date | 29 January 1971 |
Docket Number | No. 83,83 |
Citation | 178 S.E.2d 577,278 N.C. 42 |
Court | North Carolina Supreme Court |
Parties | STATE of North Carolina v. James INGLAND. |
William S. Geimer, Asst. Public Defender, for defendant appellant.
Robert B. Morgan, Atty. Gen., Claude W. Harris and Robert G. Webb, Asst. Attys. Gen., for the State.
Defendant assigns as error the failure of the trial judge to define reasonable doubt. In the absence of a request, such a charge is not required. State v. Potts, 266 N.C. 117, 145 S.E.2d 307 (1965); State v. Browder, 252 N.C. 35, 112 S.E.2d 728 (1960); State v. Lee, 248 N.C. 327, 103 S.E.2d 295 (1958); State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). It is the better practice, however, to do so and 'seems to be well nigh the universal practice of our trial judges * * *.' State v. Hammonds, supra.
Defendant next assigns as error the failure of the judge to charge the jury that its verdict must be unanimous. Some jurisdictions hold that a defendant is entitled to such an instruction. 53 Am.Jur., Trial § 804; Markham v. State, 209 Miss. 135, 46 So.2d 88 (1950); State v. McKinney, 88 W.Va. 400, 106 S.E. 894 (1921).
In North Carolina a defendant cannot constitutionally be convicted to any crime 'but by the unanimous verdict of a jury of good and lawful persons in open court.' Constitution of North Carolina, Art. I, § 13. This Court has never held, however, that failure of the trial judge to instruct the jury that its verdict must be unanimous is prejudicial error. Such a holding is unnecessary because in North Carolina a defendant has an absolute right to have the jury polled. State v. Webb, 265 N.C. 546, 144 S.E.2d 619 (1965); State v. Dow, 246 N.C. 644, 99 S.E.2d 860 (1957); State v. Cephus, 241 N.C. 562, 86 S.E.2d 70 (1955); Smith v. Paul, 133 N.C. 66, 45 S.E. 348 (1903); State v. Toole, 106 N.C. 736, 11 S.E. 168 (1890); State v. Young, 77 N.C. 498 (1877). He can thus ascertain if there has been any misunderstanding of the requirement of unanimity by any juror. 'This right is surely one of the best safeguards for the protection of the accused, and as an incident to jury trials would seem to be a constitutional right, and its exercise only a mode, more satisfactory to the prisoner, of ascertaining the Fact that it is the verdict of the whole jury.' State v. Young, supra. Here, the record shows that the jury was polled and all jurors assented to the verdict in open court. Defendant was assured that all jurors agreed with the verdict rendered. The omission of the charge on unanimity was entirely harmless. An omission complained of must not only be erroneous but also material and prejudicial to merit retrial of the case. Only if it is Likely that a different result would have been reached but for the omitted instruction is a new trial required. State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Rainey, 236 N.C. 738, 74 S.E.2d 39 (1953).
We hold that, in the absence of a request, a trial judge is not required to charge the jury that its verdict must be unanimous. Since the defendant has the right to have the jury polled, there is no apparent reason why the trial judge should be required in every case to so instruct. This assignment of error is overruled.
Defendant assigns as error the failure of the trial judge to charge on the legal principles applicable to kidnapping effected By fraud as well as kidnapping effected by force.
The unlawful taking the carrying away of a person fraudulently is kidnapping, State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962).
If it be conceded Arguendo that the evidence in this case was sufficient to require a charge on kidnapping by fraud as well as kidnapping by force, it is not perceived how a failure to charge on the fraudulent aspect of the matter was prejudicial to defendant. After all, kidnapping effected by fraud is still kidnapping, and failure to so charge would have been advantageous to defendant. Omissions beneficial to a defendant afford no grounds for reversal. State v. Goldberg, 261 N.C. 181 134 S.E.2d 334 (1964). This assignment has no merit.
Defendant's final assignment of error is addressed to the following portions of the charge:
(Emphasis added.)
The jury retired and, after deliberating for some time, returned to the courtroom and the following colloquy occurred:
The jury again retired and, after a conference between the trial judge and defense counsel, the jury was recalled by the court and the following instruction was given:
(Emphasis added.)
Defendant assigns as error the italicized portions of the foregoing instructions. He contends the definition of kidnapping is erroneous in that the jury was told defendant would be guilty of kidnapping if he seized and detained Fortner for the purpose of carrying him away, regardless of whether there was an asportation.
G.S. § 14--39 provides in pertinent part: 'It shall be unlawful for any person * * * to kidnap * * * any human being, * * *' We held in State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965), that the failure of the statute to define kidnapping did not render the statute vague or uncertain and that the common-law definition of the offense is incorporated into the statute by construction. '* * * (W)hen a statute punishes an act giving it a name known to the common law, without otherwise defining it, the statute is construed according to the common-law definition.' 22 C.J.S. Criminal Law § 21; Johnson v. Commonwealth, 209 Va. 291, 163 S.E.2d 570 (1968). That decision then holds that the common-law definition of kidnapping is 'the unlawful taking and carrying away of a person by force and against his will.'
As stated earlier, the use of fraud instead of force to effect a kidnapping is likewise a violation of our kidnapping statute. State v. Gough, supra (257 N.C. 348, 126 S.E.2d 118). Furthermore, threats and intimidation are equivalent to the use of actual force or violence. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966).
The question presented here, however, has never been directly answered by this Court. Does unlawful detention with the intent to carry away, without the asportation in fact being accomplished, constitute kidnapping? This Court has held, or quoted with approval in at least three decisions, that the word Kidnap, as used in G.S. § 14--39, means the unlawful taking and carrying away of a human being against his will by force or fraud or threats or intimidation; Or to seize and detain him for the purpose of so carrying him away. State v. Witherington, 226 N.C. 211, 37 S.E.2d 497 (1946); State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90 (1956); State v. Gough, supra (257 N.C. 348, 126 S.E.2d 118). Later cases omitted the italicized portion of the definition. State v. Lowry, supra (263 N.C. 536, 139 S.E.2d 870); State v. Bruce, supra (268 N.C. 174, 150 S.E.2d 216); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); State v. Woody, 277 N.C. 646, 178 S.E.2d 407 (1971). In every instance, however, use of the expression 'or to seize and detain him for the purpose of so carrying him away' was unnecessary to a decision of the case. The court was simply quoting Webster's definition of the word without regard to the fact that it is at variance with the common-law definition. Such dicta should no longer be regarded as authoritative.
At common law forcible detention was false imprisonment, not kidnapping. 2 Burdick, The Law of Crime (1946), § 373; Perkins on Criminal Law (1957) pp. 129, et seq. Modern statutes of many...
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