State v. . Truelove

29 S.E.2d 460, 224 N.C. 147, 1944 N.C. LEXIS 320

• Court: Supreme Court of North Carolina
• Decided: March 22, 1944
• Status: Published

Opinion

Stacy, C. J.

The questions presented are, (1) the propriety of the consolidation, and (2) the correctness of the charge.

First, in respect of the consolidation, it is to be observed that the jury returned a verdict of “not guilty” on the second indictment, or the one charging assault with intent to rape. This would seem to render the exception feckless, even if initially regarded as one of substance, though the State contends the consolidation was proper in any event. S. v. Stephens, 170 N. C., 745, 87 S. E., 131.

It is provided by Gr. S., 15-152 (C. S., 4622), that when there are several charges against any person for the same act or for two or more transactions connected together, or for two or more transactions of the same class of offenses, which may be properly joined, the court will order them to be consolidated for trial. S. v. Norton, 222 N. C., 418, 23 S. E. (2d), 301; S. v. Chapman, 221 N. C., 157, 19 S. E. (2d), 250.

Speaking to the subject in S. v. Combs, 200 N. C., 671, 158 S. E., 252, it was said: “The court is expressly authorized by statute in this State to order the consolidation for trial of two or more indictments in which tbe defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others.”

On the record as presented, we think the question of consolidation was a matter resting in the sound discretion of the trial court. S. v. Waters, 208 N. C., 769, 182 S. E., 483; S. v. Stephens, supra.

Second, in respect of the charge, the rule that what the court says to the jury is to be considered in its entirety and contextually would seem to save it from successful attack. S. v. Alex Harris, 223 N. C., 697; S. v. Grass, 223 N. C., 31, 25 S. E. (2d), 193.

The principal exception is addressed to the instruction that if Edna Byrd were intriguingly induced to get into the car, “and as a result of such inducement she got in the automobile and was taken out,” the defendants would be guilty of a violation of the statute. G. S., 14-41 (0. S., 4223.) The defendants complain at the use of the expression “taken out” as being in excess of the statutory language, “induce . . . to leave,” and necessarily too broad. S. v. Burnett, 142 N. C., 577, 55 S. E., 72. It is quite clear, from a reading of the entire charge, and the jury must have so understood it, that “taken out” was here employed in the sense of “taken away.” In speaking to the same matter in other portions of the charge, the expressions, “induce ... to leave” and “took her away,” are used. The meaning seems clear enough. It is hardly susceptible of any misunderstanding. The exception is without substantial merit. It must be overruled.

In concluding the charge, the court referred to the indictment against all three of the defendants as one for “kidnapping.” This was a clear inadvertence, a lapsus linguce, and the jury corrected it by using the word “abduction” in the verdict.

No fatal error has been shown and the record appears to support the verdict, hence the result is an affirmance.

No error.