State v. Roseman , 279 N.C. 573 ( 1971 )

184 S.E.2d 289 (1971) 279 N.C. 573

STATE of North Carolina
v.
Frankie ROSEMAN alias Franklin Rosemond.

No. 24.

Supreme Court of North Carolina.

November 10, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, for the State.

Annie Brown Kennedy, Winston-Salem, for the defendant.

LAKE, Justice.

The defendant's Assignments of Error 5 and 6 are to the failure of the court to grant his motion for judgment of nonsuit. Upon such a motion, all admitted evidence favorable to the State, whether competent or incompetent, must be considered and must be deemed true. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Stallings, 267 N.C. 405, 148 S.E.2d 252; State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777. The question for the court is whether there is substantial evidence to support a finding both that an offense charged in the bill of indictment has been committed and that the defendant committed it. State v. Cutler, supra; State v. Bass, 253 N.C. 318, 116 S.E.2d 772. The evidence in this record is clearly sufficient to support a finding that the offense charged in the bill of indictment was committed and that the defendant was a participant therein. It is immaterial whether he, personally, intended to rape the girl if he, being present, aided and abetted his companions in their assault with such intent. These assignments of error are without merit.

The defendant's Assignments of Error 7 and 9 are to the failure of the court to instruct the jury that it could find the defendant guilty of assault on a female, a lesser offense included within the crime charged in the indictment. Where all of the evidence tends to show that the offense committed, if any, was that charged in the bill of indictment and there is no evidence tending to show the commission of a lesser, included offense, except insofar as it is a necessary element of the offense charged, the court is not required to submit for the jury's consideration the possibility of a verdict of guilty of such lesser, included offense, or to instruct the jury concerning such lesser offense. State v. Bridges, 266 N.C. 354, 146 S.E.2d 107; State v. Jones, 264 N.C. 134, 141 S.E.2d 27; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Lamm, 232 N.C. 402, 61 S.E. 2d 188. All of the evidence in the present record concerning the assault upon the girl tends to show that the purpose of the assailants was to commit rape. There is no evidence whatever tending to show that she was assaulted for any other purpose, or for no purpose. Under these circumstances, it was not error to instruct the jury that they might return either a verdict of guilty of assault with intent to commit rape or a verdict of not guilty. These assignments of error are without merit.

Assignment of Error No. 8 is that the court instructed the jury that if they found from the evidence and beyond a reasonable doubt, that "on the twenty-fourth day of April, 1970" the defendant assaulted the girl (the other elements of the offense being included in the instruction), it would be the jury's duty to render a verdict of guilty as charged in the bill of indictment. The alleged error is that the indictment states that the offense occurred on the 25th of April 1970. All of the evidence is to the effect that the girl and her escort went to the dance on the evening of April 24th and left the gymnasium, wherein the dance was held, about midnight and that the assault occurred shortly thereafter. The defendant does not claim an abibi. His statement to the investigating police officer was an admission that he participated in the assault. The portion of the court's charge of which he now complains could not have prejudiced him in any way. There is no merit in this assignment of error.

Assignments of Error 3 and 4 are to the admission in evidence of the typewritten statement signed by the defendant after the court had caused to be cut off from the statement, as originally signed, the first paragraph, which paragraph is quoted in the foregoing statement of facts. The record shows that the court's reason for withholding this paragraph from the jury was that the evidence, on the voir dire examination, showed that these words were not spoken by the defendant to the police secretary but were a mere introductory form customarily used by the Police Department in the writing of such statements. While the jury might well have been permitted to see the entire typewritten statement, since all of the evidence is to the effect that the statement in its entirety was submitted to the defendant for his inspection and he, thereupon, signed it, it is obvious that the withholding of the paragraph in question from the jury's consideration could not possibly have been prejudicial to the defendant. There is no suggestion in the record that the defendant requested that this paragraph remain on the statement in the event that the jury was to be permitted to see or hear the remainder. There is no merit in these assignments of error.

The defendant's Assignments of Error 1 and 2 are directed to the court's findings upon the voir dire and to the admission in evidence of the waiver of rights signed by the defendant, the statement of his rights which Officer Dalton testified he read to the defendant and the defendant's signed statement concerning his participation in the offense charged. The court's findings are supported by evidence received upon the voir dire and are, therefore, conclusive upon appeal. State v. Wright, 274 N.C. 84, 161 S.E.2d 581; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Inman, 269 N.C. 287, 152 S. E.2d 192; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. The defendant's own testimony on the voir dire was to the effect that he was not threatened or coerced into signing either the waiver of his rights or the statement concerning his participation in the offense charged. He testified that he was not scared of the investigating officer. The evidence is clear that he could read and that he had the opportunity to read both the waiver and the statement concerning his participation in the offense charged. He testified on the voir dire that he told the officer the truth.

In his brief the defendant contends that Officer Dalton's notes and testimony show the whole sequence of events, beginning with his arrest and culminating in his signing of the statement consumed approximately one hour. His contention that the officer did not take enough time in the interrogation, and thereby violated the defendant's constitutional rights, is a novel variation upon the current theme song of criminals who have made in-custody confessions. The usual contention is that the confession was obtained by prolonged interrogation, wearing down the suspect's will and so exhausting him that, hungry, frightened and weary, he was coerced into a confession he would not otherwise have made. The novelty of this defendant's variation of the theme does not confer any merit upon it. There is nothing to show that Officer Dalton was told that the defendant's father was en route to the police station or that the defendant wished to defer further conversation until his father arrived. These assignments of error are overruled.

No error.