State v. Ware , 31 N.C. App. 292 ( 1976 )

BRITT, Judge.

All of defendant’s assignments of error relate to the felony charge, therefore, no question is presented with respect to the misdemeanor charge.

Defendant first contends that the trial court gave an incomplete charge with respect to the four elements of assault with a deadly weapon with intent to kill inflicting serious injury. This contention has no merit.

The court charged the jury that the State must prove beyond a reasonable doubt that defendant (1) assaulted the victim, (2) with a deadly weapon, (3) with an intent to kill. At that point His Honor digressed momentarily to define “intent” to the jury, but following that digression, he properly charged as to all four elements of this crime, specifically including the fourth element of “inflicting serious injury.” At most, this digression constituted a lapsus linguae which was immediately corrected in the instructions that followed. It has been held that a lapsus linguae, in the instructions not called to the attention of the court will not be held prejudicial error when it is apparent from the record that the jury could not have been misled thereby. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911, 17 L.Ed. 2d 784, 87 S.Ct. 860 (1967). The court’s charge to the jury is to be construed contextually and will not be held prejudicial when the charge as a whole is free from error. We think the charge more than adequately instructed the jury on all of the elements of the crime charged in the bill of indictment.

Defendant’s second contention is that the trial court erred in failing to accept and enter the verdict as returned by the jury foreman. This contention is also without merit.

On the felony charge, the court instructed the jury to return a verdict of (1) guilty of assault with a deadly weapon with intent to kill inflicting serious injury, (2) guilty of assault with a deadly weapon inflicting serious injury, or (3) not guilty.

The series of events that transpired must be scrutinized for an understanding of the question presented. After beginning their deliberations, the jury returned to open court with a question:

“Foreman: We would like for you to clarify the assault with a deadly weapon with intent to kill, the difference between that and assault with a deadly weapon causing bodily injury.

“COURT: Well, really, the difference between — he is charged with an assault with a deadly weapon with intent to kill inflicting serious injury in the bill of indictment, and the lesser charge is an assault with a deadly weapon inflicting serious injury which leaves out the element of intent to kill. So, the two are actually the same except for the intent to kill. Does that — give you—

“Foreman: That settles my mind.

“COURT: The elements are absolutely the same except for the lack of that one . '. . .”

The jury then resumed their deliberations and upon returning into court, the following occurred:

“Clerk: How say you find the defendant, Tyrone Ware, as charged in 75 Cr 37662, guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of assault with a deadly weapon inflicting serious injury, ■or not guilty?

“Foreman: We find him guilty of assault with a deadly weapon with intent to kill.

“Clerk: Inflicting serious injury?

“Foreman : Yes.

“Clerk: Is this your verdict, so say you all?”

(affirmative indication)

Thereafter, each member of the jury was polled as to whether guilty of assault with a deadly weapon with intent to kill inflicting serious injury was their verdict and whether they assented thereto. Each juror answered affirmatively.

Although obviously not the best procedure, we think the clerk’s inquiry of the jury was permissible in the present case. State v. May, 22 N.C. App. 71, 205 S.E. 2d 355 (1974). In Davis v. State, 273 N.C. 533, 538, 160 S.E. 2d 697, 702 (1968), the Supreme Court stated: “In accepting or refusing a verdict the trial judge cannot exercise unrestrained discretion. The trial judge should examine a verdict with respect to its form and substance to prevent a doubtful and insufficient verdict from becoming the record of the court, but his power to accept or refuse the jury’s finding is not absolute. (Citations omitted.) It is well settled in this jurisdiction that the verdict should be taken in conjunction with the issue being tried, the evidence, and the charge of the court. ...”

The uncontradicted evidence in this case shows that the victim was shot four times and is now paralyzed from the waist down. Based on this evidence the trial court correctly submitted the possible verdicts of guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of assault with a deadly weapon inflicting serious injury and not guilty. The trial court’s final instructions to the jury, in response to their question, emphasized that the only difference between the varying degrees of assault charged upon was the “intent to kill.” In light of the plenary evidence presented and the charge to the jury, we think that the foreman’s initial statement was both nonresponsive and insensible to the issues presented.

The better procedure to be followed in this situation is well stated in State v. Perry, 225 N.C. 174, 176, 33 S.E. 2d 869, 870 (1945), that: “When, and only when, an incomplete, imperfect, insensible, or repugant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict.” Nevertheless, we think the clerk’s inquiry in this case was proper to clarify the jury’s response relating to the court’s charge. A jury pronouncement is not a verdict until accepted by the court. State v. Rhinehart, 267 N.C. 470, 148 S.E. 2d 651 (1966). The verdict accepted by the trial court in this case was guilty of assault with a deadly weapon with intent to kill inflicting serious injury.

Verdicts in criminal cases ought to be clear and free from ambiguities and uncertainties. Davis v. State, supra. We think the foreman’s pronouncement in response to the submitted verdicts was uncertain and nonresponsive. That uncertainty was completely removed by the polling of the jury and their answers to the court upon polling. Any error, which we do not admit, was cured by the polling.

As stated in State v. Best, 265 N.C. 477, 481, 144 S.E. 2d 416, 419 (1965), “[a] verdict, apparently ambiguous, ‘may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court.’ (Citation omitted.) ‘The verdict should be taken in connection with the charge of His Honor and the evidence in the case. . . .’ ” The charge of the trial court reflected the un-contradicted evidence of serious injury presented in this case. Moreover, the jury after beginning deliberations, returned to the court to-ask the trial judge to clarify the two verdicts of assault upon which they had been charged. Both verdicts included the “inflicting of serious injury” and the trial court instructed that the only difference between those two verdicts was whether the defendant had an intent to kill. Therefore, when the jury foreman stated the pronouncement of guilty of assault with a deadly weapon with an intent to kill, the verdict was unresponsive to the issues submitted and the evidence presented. The clerk’s inquiry was proper under the circumstances.

Defendant cites State v. Burris, 3 N.C. App. 35, 164 S.E. 2d 52 (1968), as authority for the proposition that the verdict as first stated by the jury foreman was complete, clear, and responsive. In that case, the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The jury foreman announced a verdict of assault with a deadly weapon with intent to kill, whereupon, the clerk asked for clarification. Each member of the jury was polled and assented to a verdict of assault with a deadly weapon with intent to kill inflicting serious injury. That case is distinguishable from this case since the trial judge in Burris charged the jury that they could find the defendant guilty of assault with a deadly weapon with intent to kill or guilty of assault with a deadly weapon. Under those circumstances the verdict of assault with a deadly weapon with intent to kill was responsive to the court’s instructions. In our case the jury foreman responded with a verdict upon which the jury was not charged and which was unresponsive and uncertain in light of the evidence presented.

The facts presented in State v. Robinson, 18 N.C. App. 628, 186 S.E. 2d 593 (1972), are also distinguishable. In that case the jury was instructed that they could return one of three possible verdicts: guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of an assault with a firearm inflicting serious injury, or not guilty. The following transpired:

“The Jury Foreman: We find him guilty with intent to kill.

“The Court: Do you find him guilty of assault with a deadly weapon with intent to kill, in that language?

“The Jury Foreman: Yes.

“The Court : Is that the verdict of all of you so say you all?

“The Jury: Yes, sir.”

The court then recited that the jury had found defendant guilty of an assault with a deadly weapon with intent to kill inflicting serious injury and imposed a prison sentence of five years. Apparently, the trial judge felt that the original verdict was nonresponsive to the charges and sought clarification. Nevertheless, when His Honor inquired of the jury as to their verdict, he left off the words “inflicting serious injury.” In fact, the jury never assented to the words “inflicting serious injury” as being part of their verdict. This court held that by leaving off the words “inflicting serious injury” the jury had found defendant guilty of assault with a deadly weapon with intent to kill and therefore defendant was improperly sentenced. In this case, the clerk sought clarification of the jury’s verdict and properly included the words “inflicting serious injury” to which the jury assented and were individually polled. We do not think that the clerk’s inquiry was suggestive, but rather was a proper inquiry to an unresponsive verdict.

We conclude that defendant received a fair trial free from prejudicial error.

No error.

Judges Vaughn and Martin concur.