State v. Curtis ( 1973 )

196 S.E.2d 278 (1973) 18 N.C. App. 116

STATE of North Carolina
v.
James Ross CURTIS.

No. 7315SC188.

Court of Appeals of North Carolina.

May 9, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas E. Kane for the State.

Dalton & Long, by W. R. Dalton, Jr., Burlington, for defendant appellant.

MORRIS, Judge.

Defendant's assignments of error numbered 1 and 2 are directed to the action of the trial court in sustaining the solicitor's objections to certain questions asked of the State's witness Russell Lee Clay, Jr. on cross-examination. Defendant has cited no authority on the questions presented. We have carefully reviewed the excluded testimony and are of the opinion that no harmful error was committed therein.

By assignments of error numbered 3 and 5 defendant presents the question whether there was sufficient evidence of armed robbery to take the case to the jury. Defendant argues that in his confessory statement read to the jury by Deputy Wilson, the defendant said, "I was trying to keep Robert from shooting him," and that this evidence logically shows that the defendant was not aiding and abetting Torrain in his use of the pistol. However, we are of the opinion that viewed in the light most favorable to the State, there was ample evidence that Robert Torrain, having in his possession and with the use and threatened use of a firearm whereby the life of David Bailey was endangered and threatened, took and carried away the billfold of David Bailey, containing $19.00, from his presence and person, and that the defendant aided and abetted Torrain in the commission of the crime. G.S. § 14-87.

Defendant's assignment of error numbered 4 presents the question whether the trial court properly denied the defendant the final argument to the jury.

Rule 10, "General Rules of Practice For the Superior and District Courts Supplemental to the Rules of Civil Procedure Adopted Pursuant to G.S. § 7A-34," reads as follows:

"In all cases, civil or criminal, if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him. If a question arises as to whether the plaintiff or the defendant has the final argument to the jury, the court shall decide who is so entitled, and its decision shall be final."

Formerly, the provisions of Rule 10 were included in Rules 3 and 6, "Rules of Practice in the North Carolina Superior Courts," 213 N.C. 836. Those rules were interpreted in McIntosh, N.C. Practice 2d, § 1492, where it was said that it is ". . . now fixed by the rules of court that where any question arises as to the opening and conclusion of the argument, it is within the discretion of the court to determine it, and his decision is conclusive, except where the defendant introduces no evidence, he shall have `the right of reply and conclusion.'" By virtue of former Rule 6, cases which came within the purview of former Rule 3 ("when no evidence is introduced by the defendant, the right of reply and conclusion shall belong to his counsel") were reviewable on appeal because "[t]his is a substantial legal right, of which the defendants could not be deprived by an exercise of judicial discretion." State v. Raper, 203 N.C. 489, 166 S.E. 314 (1932).

Although new Rule 10 substantially tracks the wording of former Rules 3 and 6, the exception provided in former Rule 6, that cases under former Rule 3 were not to be finally decided by the trial court and were reviewable, has been deleted.

We do not decide whether the language of Rule 10 precludes the right of appeal from the decision of the trial judge with respect to the party having the right to close the argument to the jury, because it is clear that in this case the court properly allowed the State to close the argument. Defendant called a witness, examined him, and elicited from him information that the witness knew some of the alleged participants and had seen the other. Since defendant put on evidence, he lost his right to conclude the arguments to the jury. The fact that he was not able to glean helpful information from the witness does not restore to him the right to close the arguments.

Defendant's assignment of error numbered 6 presents the question whether the trial judge committed error by not permitting defendant's counsel to argue to the jury that Russell Lee Clay, Jr., had already been "acquitted" by the solicitor and that Robert Torrain would be tried for the crime with which defendant was charged only if the defendant should be acquitted by the jury. The control of the argument of the solicitor and counsel is largely in the discretion of the presiding judge, and counsel may not, by insinuating questions or other means, place before the jury incompetent matters, not legally admissible in evidence or travel outside the record, injecting facts not included in the evidence. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971) vacated for resentencing, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761; State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960). We hold that the excluded comments of defendant's counsel were incompetent matters in the nature of speculation or conjecture, that no prejudicial effect has been shown by not permitting defense counsel to argue those matters, and that the presiding judge properly ruled in that regard.

Assignments of error numbered 7, 8 and 10 are to portions of the judge's charge to the jury. After recapitulating the evidence given by Russell Lee Clay, Jr. and stating that Clay awoke in the car when he heard gunfire and got out of the car, the judge then said: "That Mr. Torrain said, `We are going to rob him.'" Similarly, in recapitulating Deputy Wilson's testimony as to the contents of Clay's statement to Wilson, the judge stated: "That Mr. Torrain said they were going to rob the man." Defendant contends these were material misstatements of the evidence, constituting prejudicial error.

The evidence adduced at the trial tended to show that Russell Lee Clay, Jr. had in fact said, ". . . he was going to rob the M.F.," and that Deputy Wilson had corroborated that testimony, saying, "[t]hat Robert said he was going to rob" the prosecuting witness. The rule in regard to misstatements of fact in charging the jury is set forth in State v. Frizzelle, 254 N.C. 457, 119 S.E.2d 176 (1961):

"`Ordinarily an inadvertence in stating the facts in evidence (in charging the jury) should . . . be brought to the attention of the trial court in apt time. But where the misstatement is of a material fact not shown in evidence, it is not required that the matter should have been brought to the trial court's attention.' (Parentheses added.) Strong, N.C. Index, Vol. 1, Appeal and Error, § 24, p. 102; Baxley v. Cavenaugh, 243 N.C. 677, 92 S.E.2d 68."

See also, State v. Blackshear, 10 N.C.App. 237, 178 S.E.2d 105 (1970); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). We are of the opinion that the misstatements in this case were "mere inaccuracies". There was other evidence at the trial given by Deputy Wilson that the defendant said in his statement to Wilson, ". . . Robert said to us, `He has some money, let's take it away from him.'" Thus, the misstatement by the judge of Clay's and Wilson's testimony was merely a slight inaccuracy, and since it was not called to the court's attention in apt time for correction, there was no reversible error.

In his assignment of error numbered 10 defendant asserts that the trial judge erred in failing to submit to the jury the possible verdict of guilty of common law robbery. Common law robbery is a lesser included offense of armed robbery. State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971); State v. Barksdale, 16 N.C. App. 559, 192 S.E.2d 659 (1972), cert. denied, 282 N.C. 673, 194 S.E.2d 152.

"`The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.'" State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

We hold that all the evidence in this case tends to show that the armed robbery charged was committed by the defendant, and others, acting in concert, and that the defendant aided and abetted in the use and threatened use of the firearm wielded by Robert Torrain, and that there is no evidence tending to show the commission of common law robbery. For that reason, it would have been error for the trial court to charge on the unsupported lesser degree of the crime. This assignment of error is overruled.

Defendant has had a fair trial, free from prejudicial error.

No error.

BROCK and PARKER, JJ., concur.