State v. Sneeden
164 S.E.2d 190
N.C.
1968
Check Treatment
HusKins, J.

Defendant assigns as error the refusal of the court to strike the statement by the prosecuting witness Mary Jo Welch that after she felt something hit her on the head she didn’t remember what happened until “I guess I came to and he was in the act of raping me.” Defendant argues that the statement is a conclusion of the witness which invaded the province of the jury and should have been excluded.

Carnal knowledge of a female forcibly and against her will is rape. State v. Crawford, 260 N.C. 548, 133 S.E. 2d 232. The slightest penetration of the sexual organ of the female by the sexual organ of the male amounts to carnal knowledge in a legal sense. State v. Jones, 249 N.C. 134, 105 S.E. 2d 513. Here, the evidence of the prosecuting witness is positive and unequivocal as to each and every element of the crime — force, penetration, and lack of consent. Viewed in context, the statement of the prosecuting witness that when she regained consciousness defendant was in the act of raping her was merely her way of saying that he was having intercourse with her. She was not expressing her opinion that she had been raped. Rather, *502 she was stating in shorthand fashion her version of the events to which she had already testified. Stansbury, N. C. Evidence 2d ed., § 125. Compare State v. Goines, 273 N.C. 509, 160 S.E. 2d 469. It is inconceivable that the jury could have construed it otherwise, and its admission was not error.

Defendant’s next assignment of error relates to the introduction, over objection, of the rifle found in defendant’s possession on the night of September 17, 1967. Defendant contends the rifle was not used in connection with the crime charged against him and therefore has no bearing on the question of his guilt.

In criminal cases, “. . . every circumstance that is calculated to throw any light upon the supposed crime is admissible.” State v. Hamilton, 264 N.C. 277, 286, 141 S.E. 2d 506, 513. Articles shown by the evidence to have been used in connection with the commission of the crime charged are competent and properly admitted in evidence. State v. Stroud, 254 N.C. 765, 119 S.E. 2d 907; accord, State v. Payne, 213 N.C. 719, 197 S.E. 573.

“So far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence in both civil and criminal trials. Thus, weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime or in defense against an assault.” Stansbury, N. C. Evidence 2d ed., § 118.

In State v. Harris, 222 N.C. 157, 22 S.E. 2d 229, the rape victim had been struck on the head. A brick with hairs clinging to it, found near the scene, was held properly admitted. A knife with which a rape victim was threatened and cut was held properly admitted in State v. Bass, 249 N.C. 209, 105 S.E. 2d 645.

In the case before us, there is evidence tending to show that after defendant had lured his victim into the front room of a secluded cabin he went into an adjoining room and came back with a rifle. During the conversation about the gun, defendant pointed it at Miss Welch and said, “What would you do if I were to point this gun at you and tell you to take your clothes off?” She answered in jest although feeling apprehensive, and he said, “Don’t worry I won’t” and lowered the gun and took it back to the other room. Shortly thereafter he forced her down on a bunk bed and, after rendering her unconscious by a blow on the head, sexually assaulted her. Then he took the rifle along on the trip to the motel. On that trip she testified that all she could think about was the gun in the back seat and expressed her fear that he would shoot her. Thus, there is *503 evidence tending to show that the gun was used in connection with the commission of the crime charged, and it was admissible in evidence. It had a subtle intimidating significance to the victim and apparently served as a silent persuader. In any event, it had a relevant connection with the case, and its admission was not error.

£9] Finally, defendant assigns as error the denial of his motions for a mistrial and for a new trial based upon a conversation between the bailiff and the jury foreman. After the case had been submitted to the jury and during its deliberations, the bailiff opened the door to the jury room in response to a knock on the door. The bailiff testified under oath as follows: “The foreman asked me if he could ask me a question. I told him I could not answer a question. He says ‘We wanted to know how quick a parole was possible.’ I says ‘It has nothing to do with the evidence.’ And I réported it to the judge.” Nothing else was said.

The bailiff should have declined to answer the foreman’s question and should have taken the jury to the courtroom where the presiding judge, if he deemed proper, could further instruct it. “Contacts between court officers and jurors, except as authorized by the court in appropriate circumstances, are not to be countenanced since no justification should be given for arousing suspicions as to the sanctity of'jury verdicts.” 89 C.J.S., Trial § 457(f). While it is not improper for the jury foreman to indicate to the bailiff that the jury desires further information from the court, it is improper for the bailiff to assume the role of judge and attempt to furnish the information. The legal significance of such improper conduct and the question of prejudicial effect largely depends upon the nature of the communication. See Annot., Communication with Jurors — Prejudice, 41 A.L.R. 2d 288.

In Gaither v. Generator Co., 121 N.C. 384, 28 S.E. 546, the sheriff declined to-provide the jury with refreshments except water and told the jurors they must wait until they agreed on a verdict or until the judge told him to take them to dinner. Such conduct was held not prejudicial.

In State v. Burton, 172 N.C. 939, 90 S.E. 561, the officer having the jurors in charge told them on Friday that the judge would keep them together until Sunday if they did not agree earlier. Such conduct was held insufficient for a new trial, even if the judge had authorized the officer to so inform the jury.

In State v. Adkins, 194 N.C. 749, 140 S.E. 806, the officer in charge of the jury during its deliberations informed the jurors that *504 defendant with his wife and daughter had endeavored to obtain lodging in the same boardinghouse with them. The finding of the trial judge that the verdict had not been influenced or tainted by the misconduct of the officer was upheld.

Motions for a mistrial or a new trial based on misconduct affecting the jury are addressed to the discretion of the trial court. In Re Will of Hall, 252 N.C. 70, 113 S.E. 2d 1. Unless its rulings thereon are clearly erroneous or amount to a manifest abuse of discretion, they will not be disturbed. Stone v. Baking Co., 257 N.C. 103, 125 S.E. 2d 363; O’Berry v. Perry, 266 N.C. 77, 145 S.E. 2d 321; Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19. “The circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.” Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279.

The great weight of authority sustains the rule that "... a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for new trial by the accused in a criminal case as well as of applications made in civil actions. . . . [A]nd if a trial is really fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity which is shown to have done no actual injury. Generally speaking, neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge.” 39 Am. Jur., New Trial, § 101. This statement of the rule is quoted with approval by Parker, J., now C.J., in Stone v. Baking Co., supra (257 N.C. 103, 107, 125 S.E. 2d 363, 366). See Annot., Juror-Communication with Outsider, 64 A.L.R. 2d 158.

Denial of such motions is equivalent to a finding by the trial judge that prejudicial misconduct has not been shown. Farmer v. Lands, 257 N.C. 768, 127 S.E. 2d 553; Stone v. Baking Co., supra.

The burden is on the appellant to show prejudicial error amounting to a denial of some substantial right. 1 Strong’s N. C. In *505 dex 2d, Appeal and Error, § 46; State v. Shedd, 274 N.C. 95, 161 S.E. 2d 477. Here, there is nothing in the conversation between the bailiff and the jury foreman to show injury to the defendant or to afford any reasonable ground upon which to attack the fairness of the trial or the integrity of the verdict. Upon the facts shown, the trial judge was not required as a matter of law to order a mistrial. Furthermore, no abuse of discretion has been made to appear.

The verdict and judgment will be upheld.

No error.