State v. Bolton

221 S.E.2d 747 (1976) 28 N.C. App. 497

STATE of North Carolina
v.
Maxie Ray BOLTON.

No. 755SC768.

Court of Appeals of North Carolina.

February 4, 1976. Certiorari Denied and Appeal Dismissed April 5, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Raleigh, for the State.

James J. Wall, Wilmington, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court April 5, 1976.

BRITT, Judge.

Defendant first assigns as error the failure of the court to give the jury the following requested instruction: "Minor children have testified for the prosecution during this trial. The Court instructs you that they are legally competent so to testify, but you should, in determining the credibility and weight to be given their testimony, consider their age and maturity." We find no merit in the assignment.

It appears to be settled in this jurisdiction that if a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance. State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971); cf. State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956). The question then arises, was the requested instruction "proper" under the evidence in this case?

Defendant does not cite, and our research fails to disclose, any authority from this jurisdiction in support of his contention. He submits that while some states require the instruction when requested, citing State v. Anderson, 152 Conn. 196, 205 A.2d 488 (1964), and Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959), other states have taken a different view, Marks v. State, 63 Wis. 2d 769, 218 N.W.2d 328 (1974); Overton v. State, 230 Ga. 830, 199 S.E.2d 205 (1973), and People v. Norred, 110 Cal. App. 2d 492, 243 P.2d 126 (1952), cert. denied, 344 U.S. 869, 73 S. Ct. 113, 97 L. Ed. 674 (1952).

We think the better reasoning supports our holding—that the requested instruction was not required under the evidence in this case. If the instruction were definitely required for a person nine or ten years old, would it be required for one twelve or thirteen years old? If the instruction were required for persons in the early years of life, would it not be necessary to set an arbitrary age in the later years of life when a similar instruction would likewise be required? We feel that the trial judge can more accurately determine those instances when the instruction would be appropriate. It is noted that in this case the trial judge gave the substance of the requested instruction as a contention of defendant.

Defendant's other assignment of error relates to the court's supplementary instructions to the jury after they had deliberated for approximately four hours without reaching a verdict. We find no merit in this assignment.

The record reveals that the jury deliberated one hour and fifteen minutes before the lunch recess, after which they resumed their deliberations. At 5:10 p. m. they had not agreed upon a verdict, being divided eleven to one. At that point, the trial judge gave the challenged additional instructions, ordered a recess for the night, and the jury resumed its deliberations the next morning at 9:30 a. m. They returned a verdict at 10:20 a. m. following which all jurors were polled and each assented to the verdict of guilty as charged.

Defendant argues that the additional instructions were coercive. While he concedes that the instructions were similar to those approved in State v. Accor, 13 N.C. App. 10, 185 S.E.2d 261 (1971), aff'd, 281 N.C. 287, 188 S.E.2d 332 (1972), he urges that we reconsider our holding in that case. We are not persuaded that Accor is other than sound law, therefore, we adhere to its holding.

We hold that defendant received a fair trial, free from prejudicial error.

No error.

BROCK, C. J., and MORRIS, J., concur.