{ "id": 8549140, "name": "STATE OF NORTH CAROLINA v. TYRONE WOODROW WARE", "name_abbreviation": "State v. Ware", "decision_date": "1976-11-03", "docket_number": "No. 7621SC479", "first_page": "292", "last_page": "298", "citations": [ { "type": "official", "cite": "31 N.C. App. 292" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "186 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "18 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552998 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/18/0628-01" ] }, { "cite": "164 S.E. 2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "3 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552589 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/3/0035-01" ] }, { "cite": "144 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "419" } ], "opinion_index": 0 }, { "cite": "265 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575744 ], "year": 1965, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0477-01" ] }, { "cite": "148 S.E. 2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559707 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0470-01" ] }, { "cite": "33 S.E. 2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "225 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602344 ], "year": 1945, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0174-01" ] }, { "cite": "160 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "273 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575742 ], "year": 1968, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0533-01" ] }, { "cite": "205 S.E. 2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11299475 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0071-01" ] }, { "cite": "87 S.Ct. 860", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "17 L.Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194816, 6194625, 6195241, 6194352, 6195000, 6194137 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0911-04", "/us/386/0911-03", "/us/386/0911-06", "/us/386/0911-02", "/us/386/0911-05", "/us/386/0911-01" ] }, { "cite": "150 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560152 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0069-01" ] } ], "analysis": { "cardinality": 567, "char_count": 14705, "ocr_confidence": 0.682, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34064978305685 }, "sha256": "6ae282e892fd6f91603f9d6ad1e118c6ddb7948b1cee06ca4289109ac848d686", "simhash": "1:57acc36e4e3dddb0", "word_count": 2459 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TYRONE WOODROW WARE" ], "opinions": [ { "text": "BRITT, Judge.\nAll of defendant\u2019s assignments of error relate to the felony charge, therefore, no question is presented with respect to the misdemeanor charge.\nDefendant first contends that the trial court gave an incomplete charge with respect to the four elements of assault with a deadly weapon with intent to kill inflicting serious injury. This contention has no merit.\nThe court charged the jury that the State must prove beyond a reasonable doubt that defendant (1) assaulted the victim, (2) with a deadly weapon, (3) with an intent to kill. At that point His Honor digressed momentarily to define \u201cintent\u201d to the jury, but following that digression, he properly charged as to all four elements of this crime, specifically including the fourth element of \u201cinflicting serious injury.\u201d At most, this digression constituted a lapsus linguae which was immediately corrected in the instructions that followed. It has been held that a lapsus linguae, in the instructions not called to the attention of the court will not be held prejudicial error when it is apparent from the record that the jury could not have been misled thereby. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911, 17 L.Ed. 2d 784, 87 S.Ct. 860 (1967). The court\u2019s charge to the jury is to be construed contextually and will not be held prejudicial when the charge as a whole is free from error. We think the charge more than adequately instructed the jury on all of the elements of the crime charged in the bill of indictment.\nDefendant\u2019s second contention is that the trial court erred in failing to accept and enter the verdict as returned by the jury foreman. This contention is also without merit.\nOn the felony charge, the court instructed the jury to return a verdict of (1) guilty of assault with a deadly weapon with intent to kill inflicting serious injury, (2) guilty of assault with a deadly weapon inflicting serious injury, or (3) not guilty.\nThe series of events that transpired must be scrutinized for an understanding of the question presented. After beginning their deliberations, the jury returned to open court with a question:\n\u201cForeman: We would like for you to clarify the assault with a deadly weapon with intent to kill, the difference between that and assault with a deadly weapon causing bodily injury.\n\u201cCOURT: Well, really, the difference between \u2014 he is charged with an assault with a deadly weapon with intent to kill inflicting serious injury in the bill of indictment, and the lesser charge is an assault with a deadly weapon inflicting serious injury which leaves out the element of intent to kill. So, the two are actually the same except for the intent to kill. Does that \u2014 give you\u2014\n\u201cForeman: That settles my mind.\n\u201cCOURT: The elements are absolutely the same except for the lack of that one . '. . .\u201d\nThe jury then resumed their deliberations and upon returning into court, the following occurred:\n\u201cClerk: How say you find the defendant, Tyrone Ware, as charged in 75 Cr 37662, guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of assault with a deadly weapon inflicting serious injury, \u25a0or not guilty?\n\u201cForeman: We find him guilty of assault with a deadly weapon with intent to kill.\n\u201cClerk: Inflicting serious injury?\n\u201cForeman : Yes.\n\u201cClerk: Is this your verdict, so say you all?\u201d\n(affirmative indication)\nThereafter, each member of the jury was polled as to whether guilty of assault with a deadly weapon with intent to kill inflicting serious injury was their verdict and whether they assented thereto. Each juror answered affirmatively.\nAlthough obviously not the best procedure, we think the clerk\u2019s inquiry of the jury was permissible in the present case. State v. May, 22 N.C. App. 71, 205 S.E. 2d 355 (1974). In Davis v. State, 273 N.C. 533, 538, 160 S.E. 2d 697, 702 (1968), the Supreme Court stated: \u201cIn accepting or refusing a verdict the trial judge cannot exercise unrestrained discretion. The trial judge should examine a verdict with respect to its form and substance to prevent a doubtful and insufficient verdict from becoming the record of the court, but his power to accept or refuse the jury\u2019s finding is not absolute. (Citations omitted.) It is well settled in this jurisdiction that the verdict should be taken in conjunction with the issue being tried, the evidence, and the charge of the court. ...\u201d\nThe uncontradicted evidence in this case shows that the victim was shot four times and is now paralyzed from the waist down. Based on this evidence the trial court correctly submitted the possible verdicts of guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of assault with a deadly weapon inflicting serious injury and not guilty. The trial court\u2019s final instructions to the jury, in response to their question, emphasized that the only difference between the varying degrees of assault charged upon was the \u201cintent to kill.\u201d In light of the plenary evidence presented and the charge to the jury, we think that the foreman\u2019s initial statement was both nonresponsive and insensible to the issues presented.\nThe better procedure to be followed in this situation is well stated in State v. Perry, 225 N.C. 174, 176, 33 S.E. 2d 869, 870 (1945), that: \u201cWhen, and only when, an incomplete, imperfect, insensible, or repugant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict.\u201d Nevertheless, we think the clerk\u2019s inquiry in this case was proper to clarify the jury\u2019s response relating to the court\u2019s charge. A jury pronouncement is not a verdict until accepted by the court. State v. Rhinehart, 267 N.C. 470, 148 S.E. 2d 651 (1966). The verdict accepted by the trial court in this case was guilty of assault with a deadly weapon with intent to kill inflicting serious injury.\nVerdicts in criminal cases ought to be clear and free from ambiguities and uncertainties. Davis v. State, supra. We think the foreman\u2019s pronouncement in response to the submitted verdicts was uncertain and nonresponsive. That uncertainty was completely removed by the polling of the jury and their answers to the court upon polling. Any error, which we do not admit, was cured by the polling.\nAs stated in State v. Best, 265 N.C. 477, 481, 144 S.E. 2d 416, 419 (1965), \u201c[a] verdict, apparently ambiguous, \u2018may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court.\u2019 (Citation omitted.) \u2018The verdict should be taken in connection with the charge of His Honor and the evidence in the case. . . .\u2019 \u201d The charge of the trial court reflected the un-contradicted evidence of serious injury presented in this case. Moreover, the jury after beginning deliberations, returned to the court to-ask the trial judge to clarify the two verdicts of assault upon which they had been charged. Both verdicts included the \u201cinflicting of serious injury\u201d and the trial court instructed that the only difference between those two verdicts was whether the defendant had an intent to kill. Therefore, when the jury foreman stated the pronouncement of guilty of assault with a deadly weapon with an intent to kill, the verdict was unresponsive to the issues submitted and the evidence presented. The clerk\u2019s inquiry was proper under the circumstances.\nDefendant cites State v. Burris, 3 N.C. App. 35, 164 S.E. 2d 52 (1968), as authority for the proposition that the verdict as first stated by the jury foreman was complete, clear, and responsive. In that case, the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The jury foreman announced a verdict of assault with a deadly weapon with intent to kill, whereupon, the clerk asked for clarification. Each member of the jury was polled and assented to a verdict of assault with a deadly weapon with intent to kill inflicting serious injury. That case is distinguishable from this case since the trial judge in Burris charged the jury that they could find the defendant guilty of assault with a deadly weapon with intent to kill or guilty of assault with a deadly weapon. Under those circumstances the verdict of assault with a deadly weapon with intent to kill was responsive to the court\u2019s instructions. In our case the jury foreman responded with a verdict upon which the jury was not charged and which was unresponsive and uncertain in light of the evidence presented.\nThe facts presented in State v. Robinson, 18 N.C. App. 628, 186 S.E. 2d 593 (1972), are also distinguishable. In that case the jury was instructed that they could return one of three possible verdicts: guilty of assault with a deadly weapon with intent to kill inflicting serious injury, guilty of an assault with a firearm inflicting serious injury, or not guilty. The following transpired:\n\u201cThe Jury Foreman: We find him guilty with intent to kill.\n\u201cThe Court: Do you find him guilty of assault with a deadly weapon with intent to kill, in that language?\n\u201cThe Jury Foreman: Yes.\n\u201cThe Court : Is that the verdict of all of you so say you all?\n\u201cThe Jury: Yes, sir.\u201d\nThe court then recited that the jury had found defendant guilty of an assault with a deadly weapon with intent to kill inflicting serious injury and imposed a prison sentence of five years. Apparently, the trial judge felt that the original verdict was nonresponsive to the charges and sought clarification. Nevertheless, when His Honor inquired of the jury as to their verdict, he left off the words \u201cinflicting serious injury.\u201d In fact, the jury never assented to the words \u201cinflicting serious injury\u201d as being part of their verdict. This court held that by leaving off the words \u201cinflicting serious injury\u201d the jury had found defendant guilty of assault with a deadly weapon with intent to kill and therefore defendant was improperly sentenced. In this case, the clerk sought clarification of the jury\u2019s verdict and properly included the words \u201cinflicting serious injury\u201d to which the jury assented and were individually polled. We do not think that the clerk\u2019s inquiry was suggestive, but rather was a proper inquiry to an unresponsive verdict.\nWe conclude that defendant received a fair trial free from prejudicial error.\nNo error.\nJudges Vaughn and Martin concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Jesse C. Brake, for the State.", "Wilson and Degraw, by David L. Wilson, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TYRONE WOODROW WARE\nNo. 7621SC479\n(Filed 3 November 1976)\n1. Assault and Battery \u00a7 15\u2014 felonious assault \u2014 inflicting serious injury \u2014 sufficiency of charge\nThe trial court did not give an incomplete charge with respect to the four elements of assault with a deadly weapon with intent to kill inflicting serious injury where the court charged that the State must prove beyond a reasonable doubt that defendant (1) assaulted the victim, (2) with a deadly weapon, (3) with an intent to kill, the court then digressed to define \u201cintent\u201d to the jury, and immediately thereafter the court properly charged as to all elements of the crime, including the fourth element of \u201cinflicting serious injury.\u201d\n2. Assault and Battery \u00a7 17; Criminal Law \u00a7 124\u2014 unresponsive verdict \u2014 inquiry by clerk \u2014 acceptance of verdict by court\nIn this prosecution for felonious assault, the trial court submitted issues as to defendant\u2019s guilt of (1) assault with a deadly weapon with intent to kill inflicting serious injury or (2) assault with a deadly weapon inflicting serious injury; the court, in response to an inquiry by the jury, gave an additional instruction that the only difference between the degrees of assault submitted was the \u201cintent to kill\u201d; the jury foreman stated that the jury\u2019s verdict was \u201cguilty of assault with a deadly weapon with intent to kill\u201d; the clerk asked, \u201cInflicting serious injury?\u201d and the foreman replied in the affirmative; and each juror upon being polled stated that his verdict was guilty of assault with a deadly weapon with intent to kill inflicting serious injury and that he still assented thereto. Held: The clerk\u2019s question was a proper inquiry to an unresponsive verdict, and the trial court did not err in accepting the verdict of guilty of assault with a deadly weapon with intent to kill inflicting serious injury.\nAppeal by defendant from Crissman, Judge. Judgments entered 12 February 1976 in Superior Court, Forsyth County. Heard in the Court of Appeals 19 October 1976.\nUpon pleas of not guilty defendant was tried in superior court on (1) a warrant (appealed from district court) charging him with assault with a deadly weapon on David E. Harris, and (2) a bill of indictment charging him with assault with a deadly weapon with intent to kill inflicting \u25a0 serious injury on Lillie Mae Gould. Both offenses allegedly occurred on 10 March 1975 and the weapon allegedly used was a pistol.\nEvidence presented by the State is summarized in pertinent part as follows:\nOn the afternoon of the day in question defendant went to the home of Ruby Harris and asked to see her sister, Lillie Gould. Defendant and Lillie had lived together for about four years prior to 5 March 1975 when she left defendant and moved in with her sister. Defendant entered the room where Lillie was watching television and asked her to talk with him. They went into another room to discuss Lillie\u2019s returning to live with defendant. After the two talked briefly and Lillie stated that she wo&d not resume living with him, defendant pulled a pistol and shot her four times. One bullet entered her neck and three bullets entered her abdomen. Defendant then ran to the front part of the house and shot Lillie\u2019s nephew, David Harris, in his wrist, after which he left. That evening defendant talked with Lillie\u2019s niece on the telephone and, upon learning that Lillie was still alive, he stated that he would return and \u201cfinish the job.\u201d As a result of the shooting, Lillie is permanently paralyzed from her waist down.\nDefendant presented no evidence.\nThe \u201cJudgment and Commitment\u201d signed by the trial judge in the two cases recite that the jury found defendant guilty of assault with a deadly weapon in the misdemeanor case and assault with a deadly weapon with intent to kill inflicting serious injury in the felony case. On the felony charge the court entered judgment imposing a prison sentence of twenty years. On the misdemeanor charge it entered judgment imposing a prison sentence of two years, this sentence to begin at the expiration of the twenty year sentence. Defendant appealed\nAttorney General Edmisten, by Associate Attorney Jesse C. Brake, for the State.\nWilson and Degraw, by David L. Wilson, Jr., for defendant appellant." }, "file_name": "0292-01", "first_page_order": 320, "last_page_order": 326 }