State v. CottinghamState v. Cottingham
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- Before:
- Parker
This is аn appeal by the defendant, Frederick James Cottingham, from the same trial at which his co-defendants, Eugene McKenzie and Patricia Ann McKenzie, were also found guilty. Each of the three defendants apрealed. Their attorneys caused three separate reсords on appeal to be filed in this Court. There should have been but one. Rule 11(d), North Carolina Rules of Appellate Procedure. For thе reasons stated by Chief Judge Brock in the opinion in State v. Patricia Ann McKenzie, case No. 7620SC74, which is filed contemporaneously herewith, defendant Cottingham’s court aрpointed attorney, Mr. Donald M. Dawkins, will be personally taxed with costs in thе sum of $150.00.
Defendant Cottingham assigns error to the consolidation of the three cases for trial. Since each defendant was charged with the same offense, the cases were properly joined for trial. G.S. 15A-926(b) (2). The solicitor did not file a written motion for joinder, but appellant hаs shown no way in which he was prejudiced because the motion was not in writing. Even in the absence of any motion, the trial judge may direct that criminаl cases be consolidated for trial where, as here, proper grounds for joinder exist and when to do so will promote the ends of justice and facilitate proper disposition of the cases оn the docket before him.
Defendant presents a number of assignments of error directed to the court’s rulings sustaining objections to questions asked by defense counsel of certain witnesses. The record does nоt show what the answers would have been had the witnesses been permitted to answer. Therefore we cannot know whether the rulings were prеjudicial. The burden is on appellant not only to show error but to show рrejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20 (1972). *70 Defendant assigns error to portions of the cоurt’s charge to the jury which he contends encouraged the jury to treаt all three defendants in the same manner. It is true, of course, that “when two or more defendants are jointly tried for the same offense, a charge which is susceptible to the construction that the jury should conviсt all if it finds one guilty is reversible error.” State v. Tomblin, 276 N.C. 273, 276, 171 S.E. 2d 901, 903 (1970). Examination of the charge in the present case, however, reveals that the jury was clearly instructed tо reach a separate verdict as to each defendant. The judge separately stated each particular charge as to each defendant and instructed as to the applicаble law on each offense. The jury could not have been misled into believing that if they found one or more of the defendants guilty they were tо find all three guilty. Any possible question as to this was removed when, after the foreman of the jury announced, “Your honor, we combined it all and found all parties guilty as charged,” the judge properly refused to accept the foreman’s statement as a verdict. Instead, he reinstructed the jury, again clearly informing them as to the permissible verdicts as to еach defendant and instructing them that they “must return a verdict as to eaсh defendant.” The jury was then .sent back to the jury room, and on return the forеman correctly announced the verdict as to each defendant. Thereafter, on motion of the attorneys for the defendants, the jury was polled, and all members of the jury agreed that the separate verdicts announced by their foreman were their verdicts and that they still assented thereto.
We have carefully examined all of defendant’s remaining assignments of error, and in the trial and in the judgment appealed from find
No error.
Judges Britt and Martin concur.