24 N.C. App. 65 | N.C. Ct. App. | 1974
Defendant brings forward numerous assignments of error including several which are directed to the judge’s charge. “No judge, in giving a charge to the petit jury in a criminal action, shall give an opinion whether a fact is fully or sufficiently proven....” G.S. 1-180.
The court gave the following instructions as to the elements of the crime:
“I now instruct you, members of the Jury, for you to find the Defendant guilty of kidnapping, the State must prove three things beyond a reasonable doubt.
First, that the Defendant took [the student] and carried her from one place to another; and, second, that the taking and carrying away of [the student] was without lawful authority; and, third, that the taking and carrying away of [the student] was by force and against her will and against the will of [the student]. Actual physical force need not have been used. A threat of force would be sufficient.
*70 The Court instructs you, members of the Jury, that this term of ‘force’ as set out in the elements of this crime, means any force that may have been exerted by the Defendant.” y
Immediately after the foregoing the court told the jury:
“(The Court instructs you that the fact that this was a moving automobile and was being driven on the road at a time that [the student] could not have gotten out of the automobile because it was a moving automobile, without subjecting herself to injury, at the time the automobile was first in the streets there, the University Road and the other streets, or after [the student] had requested that he let her out some, I believe, according to her testimony, sohie ten or twelve times, and that finally when the car stopped at a stop sign she jumped out of the car when it was not being operated.)” (Emphasis added.)
i Nothing follows that part of the judge’s charge étíclosed in parenthesis which would shed light on its meaning. We cannot know whether the paragraph is unclear through oversight of the able trial judge or by error in transcription. In any event, we must take the record as we find it. State v. Snead, 228 N.C. 37, 44 S.E. 2d 359.
. . Most of the conflicts in the testimony involve the. events which, in the last quoted paragraph, the judge is reported to have described as facts. An assumption by the court, that any fact, contradicted by defendant’s plea of not guilty, has been established is prejudicial error. State v. Swaringen, 249 N.C. 38, 105 S.E. 2d 99. It appears to us that the jury might well have understood the judge to mean that the most crucial facts at issue were established when, of course, there was merely evidence, tending to show those facts and this evidence was contradicted by defendant.
We cannot say that the error was harmless. The jury had some- difficulty in arriving at a verdict. .On one occasion the jury returned to the courtroom and received permissipn tp take the. written instructions on the elements of the crime with them into the jury room. The case was a close one and the error may very well have tipped the scales against defendant.,
Since there must be a new trial we will not- discu’ss the other matters which defendant assigned or might have assigned as error.