11 N.C. App. 286 | N.C. Ct. App. | 1971
Defendant assigns as error the refusal of the trial court to sustain his motion for nonsuit. There was ample evidence to require submission of this case to the jury, and this assignment is overruled.
Defendant also assigns as error certain portions of the charge. He contends that the court improperly charged the jury on the offense of attempted common-law robbery and asserts that there was no evidence as a basis for such a charge. He contends that the evidence in the record supports only a charge of attempted armed robbery. We do not agree. The evidence of the State’s witness Bright was conflicting on whether defendant Best knew that he, Bright, had a firearm before the four of
“Suppose the court erroneous^ submitted to the jury a .view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the State, and not to him.”
See also State v. Chase, 231 N.C. 589, 58 S.E. 2d 364 (1950).
As to the defendant’s other exceptions to the charge, it is said in State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971), that “[a] charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct.” When the charge in the case at bar is thus considered, we find no prejudicial error.
The defendant contends that the trial court imposed punishment on him “because of his plea of not guilty and demand for trial by jury.” He argues that this was evidenced when (1) the court ordered him into custody during recesses of the trial; (2) after conviction, the court received testimony of accomplices for the purpose of imposing punishment; (3) after hearing defendant’s plea of leniency, the judge remarked, “The first step in rehabilitation is an admission of guilt”; (4) ordered defendant into custody of the Department of Correction until he was released on $4,000 bail pending appeal; and (5) gave the State’s witness Bright a seven-to-ten-year prison sentence and put him on probation after Bright had subsequently entered a plea of guilty to attempted common-law robbery. These contentions are without merit.
It is elementary that upon a plea of not guilty, the only way for a person charged with crime to be tried in the superior courts of this State is by jury. Therefore, one does not have to “demand” a jury trial in a criminal case in superior court.
“It is the general rule in the states that the trial court has the right, in its discretion, to order a defendant who has been at large on bail into custody during the trial, or during recess, even though the offense of which the defendant is charged is bailable. * * *”
And in 23 C. J.S., Criminal Law, § 977, it is stated: “It is within the discretion of the trial court whether the accused should be placed in custody.” See also State v. Mangum, 245 N.C. 323, 96 S.E. 2d 39 (1957), and State v. Smith, 237 N.C. 1, 74 S.E. 2d 291 (1953). In State v. Stafford, 274 N.C. 519, 164 S.E. 2d 371 (1968), Justice Sharp said:
“Historically, the presumption has been that a judge will act fairly, reasonably, and impartially in the performance of the duties of his office, State v. Young, supra. Our entire judicial system is based upon the faith that a judge will keep his oath. ‘Unless the contrary is made to appear, it will be presumed that judicial acts and duties have been duly and regularly performed.’ 1 N. C. Index 2d, Appeal and Error § 46 (1967). Since, however, all judges are human, from time to time one or more will err. Notwithstanding, we have no choice but to make men judges. Judge Curtis Bok, in his book, I Too Nicodemus, said that the real crime of criminals was that they ‘have made it necessary to. judge them and have so tarnished those who do it.’ So long as errants make it necessary for other men to judge them it is best to indulge the presumption that a judge will do what a judge ought to do. Actually we have no other choice. Furthermore, men seek to justify the confidence they believe to be reposed in them.
It would demean the entire judiciary for the appellate branch to assume that trial judges — who bear the brunt of the administration of justice and from whose ranks so many ascend to courts of last resort — will penalize with ‘harsher’ sentences one. who appeals or exercises a constitutional right*291 which entitles him to a new trial. In our lexicon a sentence is harsh only when it exceeds merited punishment.”
The presumption is that Judge Copeland exercised a proper discretion in ordering the defendant into custody. The record does not indicate that the defendant was penalized or punished for exercising a constitutional right to trial by jury.
The fact that the trial court received evidence of accomplices does not signify that the defendant was being penalized or punished for exercising his right to a trial by jury. The court is permitted wide latitude on the question of punishment, and the rules of evidence will not be strictly enforced. State v. Perry, 265 N.C. 517, 144 S.E. 2d 591 (1965) ; State v. Pope, 257 N.C. 326, 126 S.E. 2d 126 (1962).
The record shows that after the jury returned its verdict, the experienced trial judge heard evidence on the question of punishment and heard the defendant’s plea for leniency. Subsequently, and before imposing an active prison sentence, the trial judge remarked, “The first step in rehabilitation is an admission of guilt.” Such a philosophical remark was gratuitous and could have been left unsaid, but while it is some indication of the contemplated judgment, it was not a sign that the judge was penalizing or punishing the defendant because of his plea of not guilty.
The fact that after defendant was sentenced and gave notice of appeal he was ordered held by the Department of Correction until he posted a $4,000 bond, does not show he was being penalized for having pleaded not guilty. A $4,000 appearance bond for one who has been sentenced to prison for a term of not less than four nor more than five years is not excessive.
Because the judge later gave the State’s witness Bright a seven-to-ten-year prison sentence and put him on probation after he had pleaded guilty to attempted common-law robbery, does not disclose that the defendant Best was being penalized or punished for pleading not guilty. The rule with respect to different punishments is stated in 3 Strong, N. C. Index 2d, Criminal Law, § 138, p. 63, as follows:
“The fact that others tried on similar charges are given shorter sentences is not ground for legal objection, the punishment imposed in a particular case, if within*292 statutory limits, being within the sound discretion of the trial judge.”
An attempt to commit robbery is an infamous crime. State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956). The sentence imposed on this defendant was not excessive under the provisions of G.S. 14-3 and G.S. 14-2. State v. Bailey, supra. It would be an exercise in futility for this court to delve into the mental processes by which Judge Copeland decided to impose an active prison sentence on this defendant. The defendant’s attempts' to assign improper motives to the lawful procedures, statement, and actions of Judge Copeland in sentencing this defendant are without merit.
In the trial of the defendant, we find no prejudicial error.
No error.
