State v. Hubbard , 19 N.C. App. 431 ( 1973 )

MORRIS, Judge.

Appellant’s first assignment of error is that persons 18, 19 and 20 years of age were systematically excluded from the jury lists. North Carolina amended its statutes effective 21 July 1971 to provide that all persons 18 years of age and older are to be included on the jury lists. G.S. 9-3. Defendants were tried in the Anson County Superior Court on 15 September 1971.

However, appellant’s position is unsound in light of the holding of the Supreme Court of North Carolina in State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972), where the defendant was likewise tried after the enactment of G.S. 9-3 as amended. Citing G.S. 9-2 — which provides that the jury commissioners are to begin preparation of a new jury list “at least thirty days” prior to 1 January 1972 — the Supreme Court held that:

“The absence from the jury list of the names of persons between the ages of eighteen and twenty-one for the short period of time here complained of is not unreasonable, and does not constitute systematic and arbitrary exclusion of this age group from jury service.” Id. at 37.

The case sub judice is indistinguishable on the facts from Cornell, supra. This assignment of error is overruled.

Appellant further contends that failure of the trial judge to conduct a voir dire examination following his objection to identification evidence rendered such evidence inadmissible. We dp not agree. Nowhere in the record does it appear that the defendant requested a voir dire examination of the identifying witness.

“When the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire, or asks for an opportunity to ‘qualify’ the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated.” (Emphasis added.) State v. Accor and State v. Moore, 277 N.C. 65, 79, 175 S.E. 2d 583 (1970).

In State v. Stepney, 280 N.C. 306, 314, 185 S.E. 2d 844 (1971), Justice Huskins, speaking for a unanimous court as to this question, and after quoting the above from State v. Accor and State v. Moore, supra, said:

“It is apparent from the foregoing decisions that the better procedure dictates that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. State v. Blackwell, supra (276 N.C. 714, 174 S.E. 2d 534). Failure to conduct the voir dire, however, does not necessarily render such evidence incompetent. Where, as here, the pretrial viewing of photographs was free of impermissible suggestiveness, and the evidence is clear and convincing that defendant’s in-court identification originated with observation of defendant at the time of the robbery and not with the photographs, the failure of the trial court to conduct a voir dire and make findings of fact, as he should have done, must be deemed harmless error. State v. Williams, supra (274 N.C. 328, 163 S.E. 2d 353). A different result could not reasonably be expected upon a retrial if all evidence of pretrial photographic identification were excluded.” Id. at 314.

In this case, there had been no evidence of a lineup or photographic identification, nor was there any later evidence as to that. The prosecuting witness testified that he was in the presence of the defendant for over two hours and had ample opportunity to observe him. A part of that time defendant had a nylon stocking over his face, but for a part of the time his face was unmasked and the witness was in an automobile or pickup truck with him for the greater part of the time. Additionally, there was other clear evidence of identification. No possible prejudice could have resulted to defendant by the court’s failure to conduct a voir dire examination.

Appellant excepts to the charge of the trial court in that it amounts to a comment on the evidence. The record does not support this position. A statement that a party had offered evidence which “tends to show” is not an expression of opinion that the evidence established such or should be believed. Thompson v. Davis, 223 N.C. 792, 28 S.E. 2d 556 (1943).

Appellant further excepts to the charge in that the expression “either or both” is used repeatedly in reference to the guilt of the two defendants. While it is error to instruct the jury in the disjunctive when joint defendants are tried together, State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969); State v. Doss, 5 N.C. App. 146, 167 S.E. 2d 830 (1969), the record in the case sub judice reveals that each use of the disjunctive “either or both” is followed by a specific instruction referring to each defendant by name. Defendant cannot be permitted to select portions of the charge — even though objectionable when standing alone — and assign errors to them if those portions can be readily explained by reference to the charge in its entirety, and the charge in its entirety appears to be without prejudicial error. In re Mrs. Hardee, 187 N.C. 381, 121 S.E. 667 (1924); Acceptance Corp. v. Edwards, 213 N.C. 736, 197 S.E. 613 (1938).

There was no error on the part of the trial court in failing to instruct the jury on the lesser included offense of larceny. It is well settled that an indictment for robbery with firearms will support a conviction of larceny, and when there is evidence of defendant’s guilt of larceny it is error for the court to fail to submit the question to the jury. State v. Wenrich, 251 N.C. 460, 111 S.E. 2d 582 (1959); State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955). It is equally well settled, however, that where all the evidence shows that property was feloniously taken from the person of the prosecuting witness by the use of a dangerous weapon, the court is not required to submit the question of defendant’s guilt of lesser degrees of the crime. State v. Fletcher, 264 N.C. 482, 141 S.E. 2d 873 (1965); State v. Wenrich, supra. Here the State’s evidence was uncontradicted, and it tended to show that the defendants did in fact take property from McRae’s person with the use of firearms.

Appellant’s'final exception to the trial court’s accepting the verdict is without merit and overruled. •'

In defendant’s trial in the Superior Court, we find no prejudicial error.

No error.

Chief Judge Brock and Judge Parker concur.