STATE
v.
BRYANT.
No. 507.
Supreme Court of North Carolina.
January 6, 1953.Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Gerald F. White, Member of Staff, for the State.
W. C. Davis and S. M. Millette, Charlotte, for defendant appellant.
BARNHILL, Justice.
The defendant assigns as error the instruction of the court as follows:
"Now, Gentlemen of the Jury, the Court has given you certain of the contentions of both the State and the defendantnot all of them. It is your duty to consider all of the contentions, *792 both for the State and the defendant, and consider all of the evidence or the lack of evidence of both the State and of the defendant."
The last sentence of the quoted instruction, as it appears in the record before us, was ineptly phrased and ill-advised. It is expressly disapproved. Even so, on this record we are not convinced that it was materially prejudicial to the defendant.
The court specifically instructed the jury that it should consider the fact defendant did not testify in his own behalf in no wise adversely to him, and repeatedly charged the jury that the burden was on the State to satisfy it of defendant's guilt beyond a reasonable doubt before it could return a verdict of guilty and that if it had "some doubt" or "any doubt" about defendant's guilt it should return a verdict of not guilty.
Furthermore, while defendant's failure to testify is not the subject of comment or consideration, the jury, in weighing the credibility of the evidence offered by the State may consider the fact that it is uncontradicted, State v. Weddington, 103 N.C. 364, 9 S.E. 577; State v. Winner, 153 N.C. 602, 69 S.E. 9, or unrebutted by evidence available to defendant. State v. Costner, 127 N.C. 566, 37 S.E. 326; State v. Kiger, 115 N.C. 746, 20 S.E. 456; State v. Jones, 77 N.C. 520; Stansbury, N. C. Evidence, sec. 56, p. 93. Perhaps this is the thought the court had in mind when it gave the instruction. In any event, when it is considered contextually, it cannot be held for error. The defendant has failed to make it appear that a new trial would probably produce a different result. State v. Davis, 229 N.C. 386, 50 S.E.2d 37; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; Braddy v. Pfaff, 210 N.C. 248, 186 S.E. 340.
When the court completed its charge and as the jury started to leave the jury box, the solicitor addressed the court as follows:
"If your Honor please, in the case of State against W. H. Ransom the defendant waives the finding of a Bill of Indictment and enters a plea of Guilty of Storebreaking and Larceny. Let the Record show that Mr. Kidd represents him."
The defendant immediately moved the court to withdraw a juror and order a mistrial. "At this time, the jury is brought back" and the court cautioned them that if they heard what was said by the solicitor in reference to Ransom as they were leaving the jury box, the jurors should not consider it. Defendant excepted to the refusal of the court to order a new trial.
The exception is without merit. "In practice, it is not uncommon to receive submissions from defendants, or to allow them to plead guilty, at any time while the Court is in session, with a view to convenience, and to expedite the business of the Court. And not infrequently, a party on trial with another, for the gravest offence, is allowed to change his plea to guilty, or to consent to a verdict of guilty for some grade of the offence of which he is charged. The Court, however, should be careful, to see that such practice works no undue prejudice to another party on trial. State v. Martin, 70 N.C. 628; State v. Pratt, 88 N.C. 639." State v. Hunter, 94 N.C. 829.
Ransom had just been on the witness stand and testified to facts which clearly disclosed his participation in the crime for the commission of which the defendant was then on trial. The jury was already fully apprized of his guilt. For us to hold that his submission to the charge in the presence of the jury was prejudicial to the defendant would disrupt accepted procedure in criminal courts and materially hamper the orderly administration of the law. We can perceive no reason why we should place our stamp of disapproval upon it.
The evidence in the case was clear and direct. No doubt the defendant failed to testify in his own behalf because he did not desire to add perjury to the crime he had already committed. On this record he could have no reasonable hope of acquittal in a future trial, for such a verdict would manifest a clear miscarriage of justice. Hence the verdict and judgment must be sustained.
No error.
PARKER, J., took no part in the consideration or decision of this case.