STATE
v.
Jimmie FLOYD, alias Johnny Floyd.
No. 722.
Supreme Court of North Carolina.
June 7, 1957.*480 F. D. Hackett, Jr., Robert Weinstein, Lumberton, for defendant, appellant.
Atty. Gen. George B. Patton, Asst. Atty. Gen. Harry W. McGalliard, for the State.
WINBORNE, Chief Justice.
The first assignment of error brought up for consideration is based on exceptions to portions of the charge lifted out of text, pertaining to the subject of alibi. But considering the charge contextually it does not appear that there is prejudicial error. What is said by this Court, in this respect, in State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867, in State v. Minton, 234 N.C. 716, at page 726, 68 S.E.2d 844, 31 A.L.R. 2d 682, and in State v. Cephus, 239 N.C. 521, 80 S.E.2d 147, is pertinent here. There this Court considered that error prejudicial to defendant did not appear. And in both the Bridgers and Minton cases suggested forms to be applied are set forth, and need not be repeated now.
The next assignment of error is predicated upon exception four to the proceeding had on the return of the jury for further information relating to identity of defendant.
Defendant contends that here he was put on the stop, so to speak, that as a result of the court's inquiry directed to the jury he was required to give evidence against himself or risk the ire of the jury by his refusal.
This position is not well taken for these reasons: While in this respect, as stated in Stansbury's North Carolina Evidence, § 57, "the previlege against self-incrimination, which finds expression in the Constitution and statutes of North Carolina, protects a witness from being compelled to give testimony to show his guilt of a criminal offense for which he may be prosecuted under the laws of the State * * *, the privilege *481 is one against being compelled to testify. It furnishes no protection against the use of testimony which was voluntarily given." State v. Simpson, 133 N.C. 676, 45 S.E. 567.
Indeed in State v. Riddle and Huffman, 205 N.C. 591, 172 S.E. 400, this headnote reveals the ruling of the Court in this manner: "The constitutional guarantee that a defendant shall not be compelled to testify against himself, Art. I, sec. 11, does not preclude testimony by a witness as to marks on defendant's body tending to identify him as the perpetrator of the crime." State v. Grayson, 239 N.C. 453, 80 S.E.2d 387, and cases cited. Also in State v. Vincent, 222 N.C. 543, 23 S.E.2d 832, opinion by Stacy, C. J., this Court held that the State has a right to have a prisoner identified, and there was no error, in a prosecution for rape, for the court to require the defendant to stand up, while prosecutrix was on the witness stand, and allow her to identify him as the man who assaulted her on the night in question. And in both State v. Riddle and Huffman, supra, and State v. Vincent, supra, the Court distinguishes the case State v. Jacobs, 50 N.C. 259, relied upon by defendant. In the Vincent case [222 N.C. 543, 23 S.E.2d 833] it is said that: "* * the identity of the defendant, and not his status or degree of color, was at issue," citing State v. Garret. 71 N.C. 85. It is pointed out that under State v. Johnson, 67 N.C. 55, it was held that the State had a right to have the prisoner identified as the person charged.
Too, quoting from State v. Tucker, 190 N.C. 708, 130 S.E. 720, it is stated: "It was the right of the state to have the defendant present at the trial, both for the purpose of identification and to receive punishment if found guilty * * * and if a defendant should persist, for example, in wearing a mask while on trial, the court would be fully justified in ordering the mask removed, so that he might be identified by the witnesses," citing Warlick v. White, 76 N.C. 175, 179.
In the light of these principles it is noted that in the instant case the witness for the State had testified as to a small scar near defendant's left eye, a small mole on his left ear, and gold on his front teeth. It was as to these that the juror inquired. True, under the circumstances here revealed, the trial judge might have denied the inquiry but, defendant having readily and fully consented for the jury to examine his person in the respects indicated, this Court holds that prejudicial error is not made to appear. The exception taken would seem to have been taken as an afterthought.
It is noted, however, that while the defendant was convicted only of a misdemeanor, the sentence imposed by the court is in the State's Prison. This is not sanctioned by law. See Constitution of North Carolina, Art. XI, Section 3, G.S. § 148-28, and State v. Cagle, 241 N.C. 134, 84 S.E.2d 649.
Hence the case is remanded for proper sentence.
Error and remanded.