No. 7023SC378 | N.C. Ct. App. | Aug 5, 1970
During the presentation of the State’s evidence a witness volunteered the statement that defendant “is AWOL from the Army”. Defendant’s objection and motion to strike were allowed, and the trial judge promptly and clearly instructed the jury to disregard the statement. Defendant immediately moved for a mistrial upon the grounds that the volunteered statement was prejudicial, and assigns as error the failure of the trial judge to order a mistrial. When the objectionable evidence is stricken and the jury instructed not to consider it, any prejudice is ordinarily cured. State v. Barrow, 276 N.C. 381" court="N.C." date_filed="1970-03-11" href="https://app.midpage.ai/document/state-v-barrow-1342732?utm_source=webapp" opinion_id="1342732">276 N.C. 381, 172 S.E. 2d 512. This assignment of error is overruled.
Defendant assigns as error that the trial judge failed to submit to the jury the question of defendant’s guilt or innocence of the offense of assault on a female as a lesser degree of the charge of assault with intent to commit rape. The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when, and only when, there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Parker, 7 N.C. App. 191, 171 S.E. 2d 665. In this case there is no evidence of an assault except in connection with the evidence of sexual intercourse. The defendant admits the act of sexual intercourse, and therefore it became only a question of whether there was consent. If there was consent, the evidence in this case would not justify a verdict of guilty of assault on a female, but would compel a verdict of not guilty. If there was no consent, the evidence in this case justifies a verdict of guilty of assault with intent to commit rape. It is clear the jury resolved the question of consent against defendant. This assignment of error is overruled.
We have carefully considered defendant’s remaining assignments of error, and they are overruled. Defendant had a fair trial, free from prejudicial error.
We note ex mero motu that the judgments as entered contain a clerical error. In case No. 6 defendant was charged with burglary; in case No. 7 he was charged with rape. However, judgment was entered as follows:
*213 In Case #5, assault with intent to commit rape, let the defendant be committed to the State Department of Corrections for imprisonment for a period of ten years.
“In Case No. 6, non-burglarious breaking and entering, let the defendant be committed to the State Department of Corrections for imprisonment for a period of five years. This sentence to run concurrently with the sentence in Case No. 5.”
It is obvious that the two references to case No. 5 were intended to be references to case No. 7. Therefore this case will be remanded for correction of the judgments to read as follows:
In Case #7, assault with intent to commit rape, let the defendant be committed to the State Department of Corrections for imprisonment for a period of ten years.
In Case No. 6, non-burglarious breaking and entering, let the defendant be committed to the State Department of Corrections for imprisonment for a period of five years. This sentence to run concurrently with the sentence in Case No. 7.
Remanded for corrections.
No Error in the trial.