#### STATE OF NORTH CAROLINA v. TEDDY LEE CARRIKER

No. 7422SC794

(Filed 4 December 1974)

T. Criminal Law § 91 — motion for continuance — court’s remarks in passing sentence in prior case

In a. prosecution for distributing marijuana to a minor, the trial court did not err in the denial of defendant’s motion for continuance • based on remarks made by the trial court in passing sentencé in a a- previous case that it was his experience with persons using marh juana who had been tried before him that they would do anything to .get the stuff and that a. lot of them get religion when they come into the'courtroom where there is nothing in the record to show that the remarks were directed toward this defendant or that any person chosen to. sit on the jury in defendant’s trial actually heard the remarks.

2. Narcotics § 4.5 — distributing marijuana to minor — failure to submit lesser offenses

, . In:.a prosecution for distributing marijuana to a minor, the trial

■ court did not err in failing to submit to the jury the lesser included offenses of possession with intent to distribute, attempted distribution and possession of less than five grams where the evidence was .un-controverted except for evidence concerning the identity of the person who sold marijuana to the minor.

■ Appeal by defendant from Gambill, Emergency Judge, Special Criminal Session, Davidson County Superior Court. Heard in the Court of Appeals 18 November 1974.

Defendant was charged in a bill of indictment with the wilful and felonious distribution of a controlled substance to a minor under G.S. 90-95 (a) (1), (a) (3) and (i). The defendant pleaded not guilty.

■ Martha King, a young girl of fifteen years at the time of trial, téstifiéd that on 25 September 1973, when she was fourteen *92years of age, she went to the defendant’s trailer to buy a nickel bag of marijuana. At the trailer, the defendant was outside talking to some boys. She told the defendant she wanted to buy a nickel bag whereupon he said “Okay” and hollered into the trailer for someone to bring out a bag. Someone brought it out, and the defendant handed her the bag and took $4.95 from her.

Later, at school, Miss King was found smoking marijuana in a restroom and was summoned to the principal’s office. The police and her mother were called, whereupon Miss King told the officers from whom she had obtained the marijuana and where the rest of it was.

One of the police officers testified that he confiscated the marijuana. He identified the marijuana shown to him at trial as the same he had taken from Miss King that day in the principal’s office. Another police officer verified that the defendant’s birthday was October 29,1949.

The defendant’s evidence was sharply contradictory to that of the State. The defendant’s wife sought to refute Miss King’s accusation that it was the defendant who had sold her the marijuana. She testified that the defendant told Miss King that he did not have any marijuana to sell and that she must have gotten it from someone else.

Another witness for the defendant testified that a Phil Presley, whose wherabouts during trial was unknown, had sold her the marijuana and not the defendant.

The defendant testified denying that he had sold Miss King the marijuana. The jury returned a verdict of guilty as charged in the bill of indictment and from a judgment sentencing the defendant to not less than fifteen nor more than thirty years in the State Prison, the defendant appealed.

Attorney General James H. Carson, Jr., by Assistant Attorney General James E. Magner, Jr., for the State.

Clarence C. Boyan for defendant appellant.

CAMPBELL, Judge.

[1] The appellant contends that the trial court erred in denying his motion to continue the trial for the reason that remarks made by the court before the jury panel had prejudiced the right of the defendant to a fair trial. Specifically, the appellant *93contends that the court prejudiced him in the minds of prospective jurors through remarks made in sentencing a defendant in a marijuana possession case heard prior to his own.

In the previous case after a plea of guilty and before passing sentence, the trial judge had remarked that it was his experience with persons using marijuana who had been tried before him that they would do anything to get the stuff. He further remarked as the prior defendant was leaving the courtroom that a lot of them get religion when they come in the courtroom. These remarks, allegedly being made before the jury panel who would try him, were, the appellant contends, prejudicial.

There is nothing in the record to indicate that these remarks were directed toward the defendant in the case at bar and there is no showing that any of the panel who were chosen to sit in this trial had heard the remarks. We do not condone the practice complained of here and think that trial judges should be extremely careful in making remarks or comments in the courtroom before prospective jurors which might cause prejudice to subsequent litigants on the calendar. While the remarks in the instant case were unfelicitous, we fail to see how the minds of the jury which tried the deféndant were affected so that a fair and impartial trial could not be had. Consequently, we hold that it was not error in this case.

[2] Next, the appellant contends that the trial court erred in submitting to the jury the possibility of returning only one of two verdicts, to wit, guilty of feloniously selling controlled substances to a minor, he being over twenty-one, or not guilty. The appellant asserts that the court should have submitted the lesser included offenses of possession with intent to distribute under G.S. 90-95 (a) (1), attempted distribution and possession of less than five grams of marijuana.

It is established that a court is not required to submit a lesser included offense to the jury when there is no evidence to support such a charge. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). The evidence in this case was uncontroverted except for evidence concerning the identity of the person who sold the marijuana to Miss King. It was established that she was under the age of eighteen and that the defendant was over the age of twenty-one. It was also generally uncontested that a sale took place. Under this evidence, the defendant either committed the crime as described in G.S. 90-95 (i) (Supp. 1971) or *94he committed no crime at all. Consequently, there was no evidence of any lesser included offenses to support a charge thereon.

On the sharply divided testimony, it was a question for the twelve, and we find no prejudicial error committed in the trial below.

No error.

Judges Morris and Martin concur.