State v. Simpson , 302 N.C. 613 ( 1981 )

276 S.E.2d 361 (1981)

STATE of North Carolina
v.
James L. SIMPSON.

No. 19.

Supreme Court of North Carolina.

April 7, 1981.

Rufus L. Edmisten, Atty. Gen., by J. Michael Carpenter, Asst. Atty. Gen., Raleigh, for the State.

David Rock Whitten, Wilmington, for defendant appellant.

HUSKINS, Justice:

We first note ex mero motu that a fatal defect appears on the face of the indictment in Case No. 79-CR-13196 in that defendant is neither named nor otherwise identified in this single-count indictment charging rape of Samantha Cumber.

Article I, § 22 of the Constitution of North Carolina provides:

Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment. But any person, when represented by counsel, may ... waive indictment in noncapital cases.

Where, as here, no presentment or impeachment is involved and no waiver of indictment has been made, a valid bill of indictment is essential to the jurisdiction of the court to try defendant for a felony. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975). An indictment must clearly and positively identify the person charged with the commission of the offense. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954); State v. Camel, 230 N.C. 426, 53 S.E.2d 313 (1949). The name of the defendant, or a sufficient description if his name is unknown, must be alleged in the body of the indictment; and the omission of his name, or a sufficient description if his name is unknown, is a fatal and incurable defect. State v. McCollum, 181 N.C. 584, 107 S.E. 309 (1921); State v. Phelps, 65 N.C. 450 (1871).

In McCollum, the record showed that the bill of indictment contained five counts. Defendant was acquitted by the jury on all counts save one. The count upon which he was convicted did not contain the name of the defendant or any name whatever. The Court said:

It is very generally held in an indictment consisting of several counts that each count should be complete in itself, and that in order to this some name should be given the defendant. If it is the wrong name, or defectively stated, the question should ordinarily be raised by plea in abatement or motion to quash. But where no name at all appears in the bill or in the only count on which a conviction is had, it is held in this jurisdiction that such a charge is fatally defective, and the judgment must be arrested. And this course should be taken though the question is presented for the first time in the Supreme Court on appeal.

181 N.C. at 585, 107 S.E. at 309 (citations omitted).

In a single-count indictment, our statutes are consistent with this case law. However, McCollum and other cases to like effect are no longer authoritative in the requirement that a judgment based on one count in a multiple count indictment must be arrested if the one count does not name the defendant. G.S. 15A-924(a)(1) provides: "A criminal pleading must contain: (1) The name or other identification of the defendant but the name of the defendant need not be repeated in each count unless required for clarity." To like effect is G.S. 15A-644 which provides that an indictment must contain, among other things, criminal charges pleaded in accordance with the above quoted statute. See also G.S. 15-144.2(a).

In Case No. 79-CR-13196, since defendant is neither named nor otherwise identified in the body of the bill of indictment, the defect is fatal and the trial court had no jurisdiction to place defendant on trial and to pronounce judgment upon the verdict. The judgment pronounced must therefore be arrested. It is so ordered. Even so, the defective bill under which defendant was tried and convicted will not serve to bar further prosecution if the district attorney be so advised. State v. Miller, 231 N.C. 419, 57 S.E.2d 392 (1950).

We turn now to defendant's assigned errors which we discuss only as they relate to the indecent liberties conviction.

Defendant's first assignment of error challenges portions of the charge to the jury. He contends the challenged portions show that the court failed to charge on the element of intent in the indecent liberties case, erred in its charge on reasonable doubt, and erred by giving confusing and contradictory instructions to the jury.

We have carefully examined the charge as a whole and especially the portion to which each exception pertains. While the charge is poorly organized and certainly not a model to be followed, we find no merit in any of the exceptions which make up defendant's first assignment of error. A jury charge must be read as a whole and in the same connected way that the judge intended it and the jury considered it. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976); State v. Wilson, 176 N.C. 751, 97 S.E. 496 (1918). The general rule is that a charge will be construed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. State v. Bailey, 280 N.C. 264, 185 S.E.2d 683, cert. den., 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972); State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965). If the charge as a whole presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal. State v. Hall, 267 N.C. 90, 147 S.E.2d 548 (1966).

There is nothing in the charge relating to Case No. 79-CR-13197 (indecent liberties) which would prejudice or mislead a mind of ordinary firmness and intelligence. When it is considered and construed in accordance with the foregoing rules of construction, the charge is sufficient. The isolated phraseology challenged by defendant's exceptions had no prejudicial effect on the result of the trial and may not be used as grounds for a new trial. Defendant's first assignment of error is overruled.

Defendant's motion to set aside the verdict in Case No. 79-CR-13197 is merely formal and requires no discussion. Such motion is addressed to the discretion of the trial court and is not reviewable absent abuse of discretion. State v. Lindley, 286 N.C. 255, 210 S.E.2d 207 (1974); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). No abuse of discretion is shown.

For the reasons stated we conclude that defendant had a fair trial free from prejudicial error in Case No. 79-CR-13197 wherein he was charged with taking indecent liberties with Allison Cumber. The verdict and judgment in that case must therefore be upheld.

In Case No. 79-CR-13196—Judgment Arrested.

In Case No. 79-CR-13197—No Error.