#### STATE v. RALEIGH SPELLER.

(Filed 8 March, 1950.)

1. Constitutional Law § 33—

It is not the right of a defendant to be tried by a jury of his own race or to have a representative of any particular race on the jury, but it is his right to be tried by a competent jury from which members of his race have not been unlawfully excluded.

3. Jury § 3—

Where it is found as a fact by the trial court upon supporting evidence, counsel for defendant having stated that they desire to offer no additional evidence relating thereto, that names of persons of both the white and colored races had been placed in the jury box without discrimination of any kind, his challenge to the array on the ground of racial discrimination is properly overruled.

3. Rape § 4—

Evidence in this case of defendant’s guilt of the capital offense of rape, held sufficient to overrule defendant’s motion to nonsuit.

4. Rape § 5—

Where in a prosecution for rape, the court calls to the jury’s attention the fact that it might recommend imprisonment for life, Chap. 299, Session Laws 1949, an exception to the charge on the ground that the court failed to properly call this matter to the attention of the jury is feckless.

Appeal by defendant from Halstead, Special Judge, August Term, 1949, of BeRtie.

Criminal prosecution on indictment charging the defendant with felonious assault and rape upon Mrs. Aubrey Davis, a female.

Yerdict: Guilty of rape as charged in the bill of indictment.

Judgment: Death by asphyxiation.

The prisoner appeals, assigning errors,

Attorney-General McMullan and Assistant Attorney-General Rhodes for the State.

Herman L. Taylor and C. J. Gates for defendant.

Stacy, C. J.

For the third time the defendant appeals from a conviction of rape, without any recommendation from the jury, and sentence of death as the law commands in such cases. On the prior appeals, reported in 229 N.C. 67, 47 S.E. 2d 537, and 230 N.C. 345, 53 S.E. 2d 294, new trials were ordered for jury defect and for failure to allow defendant sufficient time or opportunity to present his challenge to the array.

*550On tbe present bearing, all charges of discrimination, jury defect and alleged irregularities, wbicb again constitute tbe defendant’s principal exceptions, have been carefully investigated with ample opportunity afforded tbe defendant to be beard upon bis challenges. At tbe close of tbe evidence on the challenges, counsel for tbe defendant announced “that they desired to offer no additional evidence in support of said motion.”

The case was tried at tbe August Term, 1949, Bertie Superior Court, before a jury selected from a special venire drawn from Vance County at tbe instance of tbe defendant. “Defendant’s counsel suggested that the venire from which the said jury should be selected be summoned from tbe most remote county in tbe Third Judicial District, tbe same being Vance County.” (Judge’s findings, R. p. 58.)

It was made to appear that on tbe first Monday in July, 1949, tbe Commissioners of Vance County bad purged tbe jury list of their county and in full compliance with tbe law bad placed tbe names of persons of both tbe white and colored races in tbe jury box without discrimination of any kind. On tbe special venire drawn to try tbe instant case there appeared tbe names of seven Negroes, tbe race to wbicb tbe defendant belongs. It is not tbe right of any party to be tried by a jury of bis own race, or to have a representative of any particular race on tbe jury. It is bis right, however’, to be tried by a competent jury from wbicb members of his race have not been unlawfully excluded. S. v. Koritz, 227 N.C. 552, 43 S.E. 2d 77; Ballard v. U. S., 329 U.S. 187, 91 L. Ed. 181. No such exclusion appears here. Tbe challenge to tbe array was properly overruled on tbe findings made by tbe trial court, wbicb are amply supported by tbe evidence and are without sufficient challenge under tbe rules.

We omit any recitation of tbe evidence in tbe case as it is of a sordid nature. Moreover, it has heretofore been sufficiently set out and its challenge by demurrer ruled upon. Tbe motion for judgment as in case of nonsuit was properly overruled. S. v. Speller, 230 N.C. 345, 53 S.E. 2d 294.

Tbe exceptions to tbe charge are feckless and are patently without merit. They are not sustained. Tbe court was careful to call to tbe attention of tbe jury Chap. 299, Session Laws 1949, providing that “if the jury shall so recommend at tbe time of rendering its verdict in open court, tbe punishment for rape shall be imprisonment for life in tbe State’s prison, and tbe court shall so instruct tbe jury.” Notwithstanding tbe instruction, tbe jury did not see fit to make such a recommendation.

On tbe record as presented, tbe verdict and judgment will be upheld.

No error.