Boyer v. Boyer

202 S.E.2d 297, 20 N.C. App. 637, 1974 N.C. App. LEXIS 2511

• Court: Court of Appeals of North Carolina
• Decided: February 6, 1974
• Docket: No. 7421DC154
• Status: Published

Opinion

PARKER, Judge.

Appellant brings forward two questions. First, she contends the trial court erred in its charge by instructing the jury not to consider the testimony of a private detective, employed by plaintiff after the separation, to show any indignity offered plaintiff, as “anything he testified to happened after the date of the separation of the parties.” If this instruction be error, we find it insufficiently prejudicial to warrant a new trial. The detective’s testimony was fully admitted before the jury and, despite the instruction complained of, was fully recapitulated in the charge. In addition, both defendant and Peggy Smith testified they had been together on April 6th and 7th, 1973, the two occasions concerning which the detective testified, though they denied they had engaged in any impropriety. This testimony, together with a mass of testimony from both parties concerning their relationship over many years, was fully before the jury. We find no reversible error in the portion of the charge complained of in appellant’s first question.

For her second question, appellant contends that the court erred in failing to instruct the jury that its answers to the issues had to reflect a unanimous vote. In this there was no error. “[I]n the absence of a request, a trial judge is not required to charge the jury that its verdict must be unanimous.” State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577. In order to determine whether there has been unanimous agreement to a verdict, each party has the right to have the jury polled. 2 McIntosh, N. C. Practice and Procedure 2d, § 1575. Here, there was no request for an instruction and no request that the jury be polled.

No error.

Judges Britt and Vaughn concur.