State v. Cephus , 241 N.C. 562 ( 1955 )

86 S.E.2d 70 (1955) 241 N.C. 562

STATE
v.
Frank CEPHUS.

No. 75.

Supreme Court of North Carolina.

March 2, 1955.

Weeks & Muse, by T. Chandler Muse, Tarboro, for defendant-appellant.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., Gerald F. White, Member of Staff, Raleigh, for the State.

HIGGINS, Justice.

Only three assignments of error require discussion. Defendant's Exception No. 7 relates to the refusal of the court to have the jury polled. In order to determine whether the verdict of the jury is unanimous, it is the right of every defendant to have the jury polled. State v. Young, 77 N.C. 498; State v. Boger, 202 N.C. 702, 163 S.E. 877. However, this right must be exercised at the time the jury returns its verdict or before the jury is discharged, otherwise the right is deemed to have been waived. State v. Toole, 106 N.C. 736, 11 S.E. 168. In this case no request was made for a poll of the jury at the time the verdict was rendered. The jury was discharged, the jurors separated, took their seats in the courtroom. Under the circumstances, therefore, the defendant had waived his right to a poll of the jury.

Exceptions Nos. 6 and 10 relate to the charge of the court. After charging adequately and correctly on the right of self-defense in accordance with the principles approved in State v. Plemmons, 230 N.C. 56, 52 S.E.2d 10, and the cases there cited, the trial judge summarized as follows: "So you see that the self-defense plea is available to him if he, himself, did not provoke the assault, and if he did not use more force than was reasonably necessary to repel an assault, or threatened assault against him, and if he did not use more force than reasonably appeared to be necessary under the circumstances as they existed." The foregoing is the subject of Exception No. 3, Assignment of Error No. 10.

The court was detailing to the jury the circumstances under which self-defense plea of the defendant is available to him. The charge as given is equivalent to saying the plea of self-defense is available if the defendant did not provoke the assault, and if he did not use more force than was reasonably necessary to repel an assault or threatened assault. It is also available to him if he did not provoke the assault and did not use more force than reasonably appeared to be necessary under the circumstances as they existed. In view of the specific instructions theretofore given, it is difficult to see how the jury could have been misled.

Exception No. 5 is the basis of Assignment of Error No. 12 and is addressed to that part of the charge as follows:

"Under the evidence in this case, Gentlemen of the Jury, the Court instructs you that you will convict the defendant either of an assault with a deadly weapon or a simple assault in both cases if you find from the evidence and beyond a reasonable doubt that he is guilty of an assault, either with a deadly weapon or simple assault, on Lester Johnson. Likewise, you will acquit the defendant on both cases if you fail to find from the evidence and beyond a reasonable doubt that he is guilty of assault with a deadly weapon or a simple assault upon Lester Johnson. So, as to both cases, you may return one of three verdicts: You may find the defendant guilty of assault with a deadly weapon or you may find him guilty of a simple assault, or you may find him not guilty."

The charge, as given, is equivalent to an instruction to the jury that if they found from the evidence beyond a reasonable doubt the defendant committed an assault on Johnson in case No. 1696, they must find beyond a reasonable doubt he likewise committed an assault on Taylor in case No. 1697. Notwithstanding a verdict of guilty in 1696, a verdict of guilty in 1697 could only be rendered by the jury upon a finding of guilt beyond a reasonable doubt in that case. The burden was upon the State in both cases. The jury might believe the evidence tending to show an assault on Johnson and might not believe the evidence tending to show an assault on Taylor. The jurors are the triers of the facts. The law appoints them the keepers of the scales upon which the evidence is weighed. The instruction as it applied to the charge of assault on Taylor (No. 1697) was error. The error, however, is harmless.

While separate judgments, each for four months, were imposed, they were to run concurrently. The conviction and sentence in No. 1696 is without error and must stand. The sentence in No. 1697 imposes no additional burden upon the defendant. To permit the verdict in No. 1697 to stand would give the defendant his freedom when the valid sentence is served. To grant him a new trial would permit a further prosecution. The error, therefore, insofar as the appellant is concerned, is harmless. State v. Cody, 224 N.C. 470, 31 S.E.2d 445; State v. Register, 224 N.C. 854, 29 S.E.2d 464; State v. Williamson, 238 N.C. 652, 78 S.E.2d 763; State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467; State v. Toole, supra.

No error.