STATE of North Carolina
v.
John P. LOCKAMY and Sherrill G. Strickland.
No. 764SC546.
Court of Appeals of North Carolina.
December 15, 1976.*567 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.
Chambliss, Paderick, Warrick & Johnson by Joseph B. Chambliss, Clinton, for defendants-appellants.
HEDRICK, Judge.
Defendants assign as error the court's denial of their motions to quash the bills of indictment. Defendants argue that G.S. 20-106 is unconstitutionally vague. Suffice it to say this Court held G.S. 20-106 to be constitutional in State v. Rook, 26 N.C.App. 33, 215 S.E.2d 159 (1975), appeal dismissed for lack of substantial constitutional question, 288 N.C. 250, 217 S.E.2d 674 (1975). This assignment of error is overruled.
Defendants next contend the court erred in denying their motions as of nonsuit. In view of our decision in this case further elaboration on the evidence at this time is unnecessary. We hold the evidence is sufficient to require the submission of the cases to the jury.
By their eleventh assignment of error defendants contend the trial judge erred in charging the jury in such a manner that the charge was susceptible to the construction that the jury must either acquit both defendants or convict both defendants. In its final mandate the trial judge instructed the jury as follows:
"So I charge if you find from the evidence and beyond a reasonable doubt that on or about June 19, 1974, . . . the defendants, John P. Lockamy, Jr., and Sherrill G. Strickland, did have in their possession a 1974 Ford pickup truck, serial number F 10YCT 81618 which they knew or should have known to be stolen, if you further find that they were not law enforcement officers at the time or acting in the duties as law enforcement officers and if you further find from the evidence and beyond a reasonable doubtthat goes for all these findings, ladies and gentlemen, that they intended to procure or pass title to a 1974 Ford pickup truck which they knew or should have known to be stolen and did in fact receive or transfer such title from one to another, if you find those things beyond a reasonable doubt, then it would be your duty to return a verdict of guilty.
However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty."
Where two or more defendants are tried jointly on the same charge, each defendant is entitled to have the jury pass upon his guilt or innocence without regard to the guilt or innocence of a codefendant. State v. Norton, 222 N.C. 418, 23 S.E.2d 301 (1942); State v. Douglas, 10 N.C.App. 136, 177 S.E.2d 743 (1970).
A specific application of this general proposition is noted in State v. Tomblin, 276 N.C. 273, 276, 171 S.E.2d 901, 903 (1970), wherein the Supreme Court stated:
"This Court has repeatedly held that, when two or more defendants are jointly tried for the same offense, a charge which is susceptible to the construction that the jury should convict all if it finds one guilty is reversible error." (Citations omitted).
Because the defendants were charged with identical offenses and because the evidence adduced at the consolidated trial was identical as to each defendant, it *568 was not necessary for the trial judge to give wholly separate instructions as to each defendant in order to comply with G.S. 1-180. It was reasonable for the court to declare and explain the law arising from the evidence in the cases as to both defendants simultaneously. However, the trial judge must either give a separate final mandate as to each defendant or otherwise clearly instruct the jury that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant. This was not accomplished in the present case, as the State contends, when the judge in his charge to the jury merely read the separate bills of indictment. Because the charge in the present case is susceptible to the interpretation that the jury must find either both defendants guilty or both defendants not guilty, defendants are entitled to a new trial.
Defendants have other assignments of error which we need not discuss since there must be a new trial. For error in the charge the defendants are awarded a
New Trial.
BROCK, C. J., and PARKER, J., concur.