State v. Robertson , 284 N.C. 549 ( 1974 )

LAKE, Justice.

The defendant set forth ten assignments of error in his statement of the case on appeal. In his brief he states frankly that he has been unable to find any error of significance or consequence but requests this Court to review the record to see if such error appears therein. Due to the seriousness of the offenses charged and to the nature of the sentences imposed, we have not only given careful consideration to the assignments of error but have also reviewed the entire record. Like the defendant’s counsel, we find no error which would justify a new trial or modification of the judgments of the Superior Court.

The first assignment of error is to the denial of the defendant’s pre-trial motion “for a special jury venire composed of blacks and young people of his age group, in addition to the regular jury venire.” Neither the Constitution of the United States nor the Constitution or any law of this State requires that the jury which tries a criminal case be composed of, or include in its membership, persons of any specified race, age or sex or members of any other group. What is required is that there be no arbitrary, systematic exclusion of the members of such group in the selection process. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed. 2d 759; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; State v. Harris, 281 N.C. 542, 189 S.E. 2d 249; State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768; State v. Yoes, 271 N.C. 616, 632, 157 S.E. 2d 386; State v. Brown, 271 N.C. 250, 156 S.E. 2d 272. The defendant does not contend, and there is no evidence whatever in the record to suggest, that members of any race or any other group were systematically or arbitrarily excluded in the process by which the jury which tried the defendant was selected. There is no merit in this assignment of error.

The defendant’s Assignment of Error No. 10 is to the denial of his motion for judgment of nonsuit. This assignment is likewise without merit, the evidence being ample to support the verdict of guilty on each of the four offenses charged. The testimony of the little girl, Brenda Mabe, was that when she, her mother and their companion, William Lee Ernst, entered the home of Mrs. Mabe, they were attacked without provocation by an intruder armed with and using a knife. Immediately after the attack both her mother and Mr. Ernst lay on the floor and blood “was all around.” The intruder then took their billfolds. The Sheriff of the County testified that he found the dead bodies of Mrs. Mabe and Mr. Ernst on the floor of the house the next morning. The medical expert who performed autopsies pn the bodies testified that, in each case, the cause of death was stab wounds.

Expert testimony was to the effect that fingerprints of the defendant were found in the house. The little girl positively identified the defendant, in court, as the man who had so attacked her mother and Mr. Ernst. She, herself, had spent three days and three nights in the defendant’s company immediately after the attack. There was no evidence of any pre-trial identification of the defendant by this witness.. Clearly, the evidence was ample to support the verdict of murder in the first degree, and there was no error in denying the motion for judgment as of nonsuit with reference to either of the murder charges. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666; State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (death sentence vacated, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed. 2d 860).

The child’s testimony was that, under threat of death if she did not obey him or attempted to escape, the defendant compelled her to accompany him from her home, to ride about with him all night in an automobile and then to roam with him in the woods for three days and nights. This is ample evidence to support the submission to the jury of the charge of kidnapping. State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845; State v. Woody, 277 N.C. 646, 178 S.E. 2d 407.

The evidence shows the child was nine years of age at the time of the offenses and that the defendant had sexual'intercourse with her. She testified that he threatened to kill her if she did not do as he commanded. Clearly, this evidence was sufficient to submit to the jury the charge of rape. G.S. 14-21; State v. Cox, 280 N.C. 689, 187 S.E. 2d 1; State v. Murry, 277 N.C. 197, 176 S.E. 2d 738; State v. Temple, 269 N.C. 57, 152 S.E. 2d 206.

The defendant’s Assignments of Error 2, 3, 4, 5, 8 and 9 were to the court’s sustaining objections by the State to questions propounded by the defendant’s counsel to Brenda Mabe and to other witnesses for the State on cross-examination. In a number of these instances the witness answered the question notwithstanding the court’s having sustained the objection, and the record does not indicate that the jury was instructed to disregard the answer. In other instances the record does not disclose what the answer of the witness would have been had the objection not been sustained. Furthermore, we find no error in the ruling of the trial judge on these various objections by the State. There is no merit in these assignments of error.

The defendant’s Assignments, of Error 6 and 7 are to the court’s overruling of the defendant’s objections to questions propounded by the solicitor to an agent of the State Bureau of Investigation who participated in the investigation of the murders and, in the course thereof, observed the bodies of Mrs. Mabe and Mr. . Ernst at the scene of the crimes. There, was ho error in allowing this witness to testify that Mrs. Mabe and Mr. Ernst were dead when he observed the bodies or in permitting him to. state what wounds he observed on the bodies. There, is no merit in either of these assignments of error.

The defendant did not except to any portion of the court’s charge to the jury. We have, however, examined the charge carefully and find therein no error.

The rape of Brenda Mabe and the murders of Mrs. Mabe and Williaim Lee Ernst having occurred prior to our decision in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19, the court properly sentenced the defendant to imprisonment for life for each of these offenses. There was also no error in the imposition of the sentence to life imprisonment for the offense of kidnapping Brenda Mabe. G.S. 14-39; State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115.

No error.