STATE of North Carolina
v.
Donald Dewey NORRIS.
No. 11.
Supreme Court of North Carolina.
October 10, 1973.*446 Robert Morgan, Atty. Gen. by H. A. Cole, Jr., Asst. Atty. Gen., and Thomas B. Wood, Raleigh, for the State.
Robert H. Forbes, Gastonia, for defendant.
HIGGINS, Justice.
The defendant's counsel argues that the defendant is entitled to a new trial on the kidnapping charge and a directed verdict of not guilty on the charge of rape, alleging the court committed errors of law: (1) By refusing to permit the investigating officer to repeat to the jury exculpatory statements made by the defendant at the time of the arrest; (2) and (3) in denying the defendant's motions to dismiss at the close of the State's evidence and repeated after the defense rested without offering evidence; (4) in charging the jury that a verdict either of guilty or not guilty must be unanimous; and (5) in permitting the clerk to poll the jury in the manner disclosed by the record.
The defendant's purported exculpatory statements were made to the arresting officer ten days after the offenses. They were properly excluded. "It is settled by repeated adjudications, that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestae." State v. Chapman, 221 N.C. 157, 19 S.E.2d 250. State v. Peterson, 149 N.C. 533, 63 S.E. 87; State v. Stubbs, 108 N.C. 774, 13 S.E. 90. The assignment of error is without merit.
The evidence of Mrs. Brown was full and complete, disclosing all elements of the crimes charged. She made immediate report to the officers and directed and led them to the place where the assaults were committed. She reported to the officers *447 the defendant left a cigarette butt at the scene. The officers found it and also a pair of socks Mrs. Brown left at the place where the assaults occurred. The evidence was ample to go to the jury and to sustain the verdicts. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. The motions to dismiss the charges were properly denied.
The defendant challenges the court's instruction that the verdicts whether guilty or not guilty must be unanimous. The charge is correct. The court accepts only a unanimous verdict reported by the jury. If the jury reports a failure to agree, the practice is for the judge to instruct the jury to continue its deliberations if a verdict seems at all likely. However, upon a finding the jury is hopelessly deadlocked, it is proper for the judge to declare a mistrial and reset the case for retrial. The judge, especially in a capital case, should make inquiry and should find facts before ordering a mistrial. After a jury is empaneled, jeopardy usually attaches. Hence the record should show just cause for a mistrial. State v. Boykin, 255 N.C. 432, 121 S.E.2d 863; State v. Cofield, 247 N.C. 185, 100 S.E.2d 355; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243.
Since the defendant finds fault with the form of the verdict and the manner of its return and of the polling of the jury, we quote here the record dealing with these subjects:
"VERDICT
The jury retired to the jury room to begin their deliberations at 2:10 o'clock P.M. They returned with their verdict at 4:12 o'clock P.M.
THE COURT: Ladies and Gentlemen of the Jury, will you please rise. (The jury stands)
THE CLERK: Members of the Jury, answer to your name. (Whereupon, the Clerk called the names of each juror in the box and each juror answered `here.'
THE CLERK: Have you all agreed on your verdict?
THE FOREMAN: Yes.
THE CLERK: Who shall speak for you?
THE FOREMAN: I will.
THE CLERK: Donald Dewey Norris, stand and hold up your right hand. Members of the Jury, look upon the defendant. What say you? Is he guilty of the felony or (sic) rape whereof he stands indicted or not guilty?
THE FOREMAN: Guilty.
THE CLERK: Harken to your verdict as the Court recordeth. You say that Donald Dewey Norris is guilty of rape whereof he stands charged. So say all of you. On the count of kidnapping, is the defendant, Donald Dewey Norris, guilty or not guilty as charged in the bill of indictment?
THE FOREMAN: Guilty.
THE CLERK: You find the defendant guilty of kidnapping. This is your verdict, so say all of you.
THE COURT: (To Mr. Forbes) You wish to have the jury polled?
MR. FORBES: Yes, sir, your Honor.
- - - - - -
POLLING OF JURY
THE COURT: (To the Jury) Ladies and Gentlemen of the Jury, we will now, at the request of counsel, pole (sic) the jury. As your name is called, will you please rise and answer the questions which the Clerk will ask you. (The Clerk polls the jury as follows:
LYNDA GREEN
Q. You have reported to the Court a verdict of guilty of rape and guilty of kidnapping. Was this your verdict?
A. Yes.
*448 Q. Is this now your verdict?
A. Yes.
Q. Do you still agree and assent thereto?
A. Yes."
The record also discloses that each of the other eleven who were members of the jury was asked the same questions and made precisely the same answers as did Lynda Green. The verdicts are regular in all respects.
The defendant's objections to his trial are utterly without merit. Only the gravity of the charges, and the findings of guilt thereon, justify this extended discussion.
No error.