STATE
v.
SEARS.
No. 652.
Supreme Court of North Carolina.
May 21, 1952.*908 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
Samuel S. Mitchell, Fayetteville, Herman L. Taylor, Raleigh, for defendant appellant.
WINBORNE, Justice.
While appellant, the defendant, makes six assignments of error, only three need be given express consideration.
First: It is contended and argued by appellant that the trial court erred in overruling his motion for judgment as of nonsuit made at the close of all the evidence, G.S. § 15-173, as rewritten in Chap. 1086 of 1951 Session Laws of North Carolina.
Such a motion made under the provisions of G.S. § 15-173, formerly C.S. § 4643, and as so rewritten, serves, and is intended to serve, the same purpose in criminal prosecutions as is accomplished by G.S. § 1-183, as rewritten in Chapter 1081 of 1951 Session Laws of North Carolina, formerly C.S. § 567, in civil actions. State v. Fulcher, 184 N.C. 663, 113 S.E. 769.
Thus, in considering such motion in a criminal prosecution, the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State's evidence, it may be used to explain or make clear that which has been offered by the State. See Rice v. Lumberton, 235 N.C. 227, 69 S.E.2d 543, where the decisions of this Court in support of the above rule of procedure are assembled. See also State v. Bryant, 235 N.C. 420, 70 S.E.2d 186.
Therefore, taking the evidence offered by the State and so much of defendant's evidence as is favorable to the State, or tends to explain and make clear that which has been offered by the State, in the light most favorable to the State, this Court is of opinion, and holds that there is sufficient evidence to take the case to the jury on the question of the guilt or innocence of defendant on the charge of rape set out in the bill of indictment, or on the lesser charge for which the solicitor of the State elected to put him upon trial. As set out above in statement of the case, the testimony of the prosecutrix tends to show the essential elements of the crime of rape upon her on the night of 9 November, 1951, and that the defendant was the perpetrator of the crime. And other evidence offered by the State as set out in the case on appeal, tends to corroborate the testimony of the prosecutrix.
On the other hand, the evidence offered by defendant is in conflict with the State's evidence. Hence the evidence of defendant may not be taken into consideration in passing upon the motion of defendant for judgment as of nonsuit at the close of the evidence under provisions of G.S. § *909 15-173, as so rewritten. The evidence offered makes an issue of fact which the jury alone may determine, State v. Wood, N.C., 70 S.E.2d 665, under proper instructions from the court upon applicable principles of law. And, the assignment of error is not sustained.
Second: Exception is taken to an excerpt from the charge of the court to the jury. The record shows that "During the course of the charge, the court, after having fully stated the contentions of the State, said to the jury: `The court does not understand from the argument of counsel that there is any serious contention about the fact that there was an attack upon the prosecuting witness; however, the defendant contends that while there may have been an attack upon her by some person, he contends that he could not have been the attacker as he was some thirty miles away at the time in question, in the Town of Lillington, in the County of Harnett'."
The charge of the court to the jury is not contained in the record of case on appeal. The above is the only portion of it shown.
When the judge's charge is not shown in the record of case on appeal, it will be presumed that the court correctly instructed the jury on every principle of law applicable to the facts in evidence. Growers Exchange v. Hartman, 220 N.C. 30, 16 S.E.2d 398; Cato v. Hospital Care Ass'n, 220 N.C. 479, 17 S.E.2d 671; State v. Wooten & Ward, 228 N.C. 628, 46 S.E. 2d 868; State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458; State v. White, 232 N.C. 385, 61 S.E.2d 84. See also Hornthal v. Norfolk Southern R. Co., 167 N.C. 627, 82 S.E. 830; State v. Jones, 182 N.C. 781, 108 S.E. 376; Dry v. Charlotte Coca-Cola Bottling Co., 204 N.C. 222, 167 S.E. 801; Miller v. Wood, 210 N.C. 520, 187 S.E. 765; Maynard v. Holder, 219 N.C. 470, 14 S.E.2d 415.
In the light of this well-settled rule in this State, since the whole charge is not contained in the record of case on appeal, it will be presumed that the court correctly instructed the jury that the burden is upon the State to prove beyond a reasonable doubt that the offense charged was committed. The excerpt from the charge, to which exception is taken, does not contradict this presumption. Indeed, in view of the defense set up by defendant, it would seem that this excerpt is the statement of a contention, and is not violative of the provisions of G.S. § 1-180, as rewritten by Chap. 107 of 1949 Session Laws of North Carolina. Compare State v. Jackson, 199 N.C. 321, 154 S.E. 402; State v. Vick, 213 N.C. 235, 195 S.E. 779.
Third: Exception is taken to the manner in which the verdict of the jury was received.
The record shows that: "The jury retired and subsequently returned into the court and when asked by the Clerk how they found, the answer was `Guilty as charged'; whereupon the court stated to the jury that the charge in the bill of indictment was that of rape, which is the capital felony, and that, as explained in his charge to the jury, the Solicitor was not asking for a verdict of `Guilty of Rape' but for a verdict of `Guilty of Assault with Intent to Commit Rape'; and the court inquired of the jury if that was the verdict which they intended to render, that is to say, `guilty of assault with intent to commit rape', whereupon the jurors all nodded their heads in acquiescence and the foreman stated, `That is our verdict, guilty of assault with intent to commit rape.' The verdict was accepted by the court and enrolled upon the Minutes of the Court of the Term."
We hold that the manner of receiving the verdict is unobjectionable. This Court so held in State v. Wilson, 218 N.C. 556, 11 S.E.2d 567, 568, where verdict on the second count was received in similar manner.
The Court said: "We are of the opinion that no irregularity or defect of procedure attended the rendering of the verdict on the second issue, and that a judgment based thereupon is valid. The jury attempted to return a verdict upon this issue, it is true, but it was not responsive to the indictment, and since it was a verdict they could not in *910 law render, it was the duty of the judge to require that they continue their deliberations until a proper verdict should be reached. His instructions as to the verdict they might render on this count are consistent with the law."
Such is the situation in hand. What transpired simply spelled out what the jury had agreed upon as its verdict.
The remaining assignments relate (4 and 5) to denial of defendant's motions to set aside the verdict, and for a new trial, and (6) to the signing of judgment. These, in the light of decision on other assignments of error, are formaland abide the decision as to them.
It is noted that in brief of counsel for defendant much is said about constitutional rights of defendant. But we fail to see that any constitutional question is presented. The points arose in a State court in the regular course of a judicial (criminal) proceeding. Only questions of evidence and criminal procedure are presented.
In the judgment from which appeal is taken, we find
No error.