State v. Carriker , 24 N.C. App. 91 ( 1974 )

CAMPBELL, Judge.

The appellant contends that the trial court erred in denying his motion to continue the trial for the reason that remarks made by the court before the jury panel had prejudiced the right of the defendant to a fair trial. Specifically, the appellant contends that the court prejudiced him in the minds of prospective jurors through remarks made in sentencing a defendant in a marijuana possession case heard prior to his own.

In the previous case after a plea of guilty and before passing sentence, the trial judge had remarked that it was his experience with persons using marijuana who had been tried before him that they would do anything to get the stuff. He further remarked as the prior defendant was leaving the courtroom that a lot of them get religion when they come in the courtroom. These remarks, allegedly being made before the jury panel who would try him, were, the appellant contends, prejudicial.

There is nothing in the record to indicate that these remarks were directed toward the defendant in the case at bar and there is no showing that any of the panel who were chosen to sit in this trial had heard the remarks. We do not condone the practice complained of here and think that trial judges should be extremely careful in making remarks or comments in the courtroom before prospective jurors which might cause prejudice to subsequent litigants on the calendar. While the remarks in the instant case were unfelicitous, we fail to see how the minds of the jury which tried the deféndant were affected so that a fair and impartial trial could not be had. Consequently, we hold that it was not error in this case.

Next, the appellant contends that the trial court erred in submitting to the jury the possibility of returning only one of two verdicts, to wit, guilty of feloniously selling controlled substances to a minor, he being over twenty-one, or not guilty. The appellant asserts that the court should have submitted the lesser included offenses of possession with intent to distribute under G.S. 90-95 (a) (1), attempted distribution and possession of less than five grams of marijuana.

It is established that a court is not required to submit a lesser included offense to the jury when there is no evidence to support such a charge. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). The evidence in this case was uncontroverted except for evidence concerning the identity of the person who sold the marijuana to Miss King. It was established that she was under the age of eighteen and that the defendant was over the age of twenty-one. It was also generally uncontested that a sale took place. Under this evidence, the defendant either committed the crime as described in G.S. 90-95 (i) (Supp. 1971) or he committed no crime at all. Consequently, there was no evidence of any lesser included offenses to support a charge thereon.

On the sharply divided testimony, it was a question for the twelve, and we find no prejudicial error committed in the trial below.

No error.

Judges Morris and Martin concur.