State v. Barnes , 26 N.C. App. 37 ( 1975 )

VAUGHN, Judge.

The case was clearly one for the jury, and defendant’s argument to the contrary is without merit.

Defendant contends that the court failed to define the amount of proof necessary to satisfy the jury that she acted in self-defense. A reading of the charge discloses that the instructions on the burden of proof required of the respective parties were entirely proper. In all material respects the instructions given in this case were identical to those approved in numerous decisions of the Supreme Court.

On two occasions the jury returned to the courtroom and one of the jurors indicated that the jury would not be able to agree on a verdict. On the first occasion the judge made no comment except to excuse the jury for lunch and tell them to come back at two o’clock and continue their deliberation. On the other occasion the judge inquired as to the numerical division. A juror replied, “10-2.” The judge’s only comment was “Ladies and gentlemen, I’m going to ask you to retire and consider your verdict for a while longer.” Thirty minutes later the jury returned the verdict.

Defendant argues that requesting the jury to continue to deliberate after the foregoing tended to coerce them into • a verdict. The argument is without merit. The jury deliberated for a total time of less than four hours which is certainly not an unusual length of time when the gravity of the offense and the conflicting inferences arising from the evidence are considered.

Defendant also contends that the court erred in directing the jury to continue to deliberate without telling the jury that no juror should surrender his convictions in order to agree to a verdict. The failure to give an instruction to that effect was the cause of a new trial in State v. McKissick, 268 N.C. 411, 160 S.E. 2d 767. Here, however, unlike McKissick, the court did not urge the jury to reach a verdict, give additional instructions on the responsibilities of jurors or suggest the consequences of their failure to agree. He simply and without comment allowed them to continue to deliberate. In this there was no error.

Although he did not raise the issue at trial, defendant now contends the judge should not have accepted the verdict because “the jury had a misapprehension about the effect of the verdict it rendered.” We disagree.

The jury returned its verdict, as follows:

“Clerk : How find you the Defendant, Clara Virginia Barnes, guilty of second degree murder, or guilty of voluntary manslaughter or not guilty?

Juror: We find the Defendant guilty of voluntary manslaughter and request mercy.”

The jury was polled and each juror was asked the following question:

“Clerk : You have returned a verdict of guilty to voluntary manslaughter, is this your verdict and do you still assent thereto ?”

Each juror answered yes. One juror added, “Yes, with mercy.”

The verdict was guilty. The guilty verdict was unequivocal. The return of that verdict ended the jury’s role in the proceedings. The recommendation of mercy is no part of the verdict. The question of punishment is for the judge. There is nothing to suggest that any juror conditioned his assent to the verdict upon the judge’s acceptance of the recommendation of mercy or, that by making the request, any juror had any doubt about the guilt of the accused.

We find no prejudicial error in the trial and judgment from which defendant appealed.

No error.

Judges Morris and Clark concur.