State v. Walters , 33 N.C. App. 521 ( 1977 )

VAUGHN, Judge.

We have carefully considered defendant’s exceptions based on the denial of his motion for nonsuit. When all the evidence is considered in the light most favorable to the State, we conclude that it was sufficient to take the case to the jury.

At the conclusion of all the evidence, and in the absence of the jury, defendant moved that he be allowed to read to the jury the provisions of G.S. 14-17 [“Murder in the first and second degree defined; punishment”] and G.S. 14-18 [“Punishment for manslaughter” including the punishment provisions. The court refused to allow counsel to read any of the punishment provisions of the statute to the jury. That denial is the subject of defendant’s exception No. 47.

G.S. 84-14, in part, provides, “In jury trials the whole case as well of law as of fact may be argued to the jury.”

In State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553, the Supreme Court awarded a new trial in a burglary case because the trial court refused to allow counsel to advise the jury of the punishment by law provided for the crime.

In State v. Britt, 285 N.C. 256, 273, 204 S.E. 2d 817, the Supreme Court held:

“Counsel may, in his argument to the jury, in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged. G.S. 84-14; State v. Crisp, 244 N.C. 407, 94 S.E. 2d 402, 67 A.L.R. 2d 236; Annot. 67 A.L.R. 2d 245. He may not, however, state the law incorrectly or read to the jury a statutory provision which has been declared unconstitutional. See, State v. Banner, 149 N.C. 519, 526, 63 S.E. 84. Nor may counsel argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely.” (Emphasis added.)

Justice Exum, speaking for a unanimous Court in State v. McMorris, supra, said:

“In a real sense the sanction prescribed for criminal behavior is part of the law of the case. Indeed, the dispute in jurisprudential circles is whether the sanction for its violation is the only thing which distinguishes law from custom. See H.L.A. Hart, The Concept of Law, Chapters 1 and 2 (1961).

It is, consequently, permissible for a criminal defendant in argument to inform the jury of the statutory punishment provided for the crime for which he is being tried. In serious felony cases, at least, such information serves the salutary purpose of impressing upon the jury the gravity of its duty. It is proper for defendant to advise the jury of the possible consequence of imprisonment following conviction to encourage the jury to give the matter its close attention and to decide it only after due and careful consideration.”

G.S. 84-14, as interpreted by the Supreme Court, gives a defendant the right to inform the jury of the punishment that may be imposed upon conviction of the crime for which he is being tried. The defendant at bar was deprived of that right and, under the authority of McMorris and Britt, will be awarded a new trial.

It is not necessary to discuss the other errors assigned by the defendant because they may not occur at his next trial.

New trial.

Judge Arnold concurs. Judge Britt dissents.