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JOHNNY H. BOYD" ], "opinions": [ { "text": "EXUM, Justice.\nI\nDefendant\u2019s first four assignments of error relate to the selection of the jury. He contends that the State should not have been permitted to question prospective jurors about their beliefs on capital punishment. The argument is without merit. We continue to believe as we said in State v. Crowder, 285 N.C. 42, 46, 203 S.E. 2d 38, 41 (1974) :\n\u201cIn order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror\u2019s moral or religious scruples, beliefs, and attitudes toward capital punishment.\u201d\nSee also G.S. 15-176.3.\nDefendant next says it was error to allow the State\u2019s challenges for cause of seven prospective jurors who stated that because of their personal opposition to capital punishment they could not under any circumstances return a verdict the consequences of which would be the imposition of the death sentence. Defendant argues that a jury deprived of such persons is \u201cconviction-prone\u201d and biased in favor of the prosecution on the question of guilt. This argument has been consistently rejected by a majority of the United States Supreme Court, Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed. 2d 797, 88 S.Ct. 1788 (1968); Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968), and unanimously by this Court. State v. Avery, 286 N.C. 459, 212 S.E. 2d 142 (1975) and cases cited; State v. Williams, 286 N.C. 422, 212 S.E. 2d 113 (1975) and cases cited; State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844 (1974); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969) ; State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968), cert. denied, 393 U.S. 1042, 21 L.Ed. 2d 590, 89 S.Ct. 669 (1969). We adhere to our former rulings on this point.\nDefendant contends that his challenge for cause of Juror Graeber should have been .allowed.. What , transpired as revealed by the record follows (questions unless indicated otherwise are -by defendant\u2019s counsel):\n\u201cQ: Mrs. Graeber, do you feel like Mr. Boyd must have done something to be here, ma\u2019am? Honestly? \u25a0\n\u201cA : Well, I don\u2019t think they just go out and arrest someone without cause, or reason. .... '\n\u201cQ: So you think he must have done something in order to be here, committed some crime?\n\u201cA: I have a few mixed emotions about it.'\n\u201cQ: You replied to the Solicitor\u2019s, question about capital punishment \u2014 you replied that you had no scruples whatsoever \u2014 I thought by your answer that you might be prejudiced against him, and if you are, we\u2019d like to know, of course.\n\u201cA:- Well, I just feel very strongly for capital punishment, if the person, if it was proved of rape, murder, burglary.\n\u201cQ: And that would be without consideration of the circumstances of any particular case? \u2022\n\u201cA: I said if it was proved, by the evidence.\n\u201cQ: Just across the board.\n\u201cA: On rape, burglary, murder.\n\u201cQ: Let\u2019s go back to your feelings about Mr. Boyd and the fact that you say the police don\u2019t arrest somebody without reason. Do you feel that as he sits here, in your mind, he is innocent and will remain so until such time as the State proves beyond a reasonable doubt all the elements of the crimes charged against him?\n\u201cA: Yes, because he said so, and I usually take someone at their word until\u2014\n\u201cQ: So, then, you can detach yourself to the point that you don\u2019t feel like he has done anything at the present time, is that right?\n\u201cA: I suppose so.\n\u201cQ: I don\u2019t mean to belabor it, but\u2014\n\u201cA: I\u2019m sorry, but I do have mixed emotions about it\u2014 I\u2019m very sorry.\n\u201cQ: I\u2019d like to challenge her for cause if it please the Court.\n\u201cCourt: Are you of the opinion that the police only arrest people who are guilty of something?\n\u201cA: No, sir, no, sir.\n\u201cCourt: And do you feel that just because a person is accused of a crime, they must be guilty of something or they wouldn\u2019t be here ? Now, think about that.\n\u201cA: I have tried to think about it.\n\u201cCourt: Ma\u2019am?\n\u201cA: I have tried to think about it, but I couldn\u2019t say the man is guilty until the circumstances proves it one hundred percent.\n\u201cCourt: That\u2019s what it\u2019s all about. As you see the defendant, now, the fact that he\u2019s been indicted, there\u2019s no evidence that he has committed any offense, is it?\n\u201cA: That\u2019s right.\n\u201cCourt: And before \u2014 so far as you\u2019re concerned, before you\u2019ll convict him of any crime, no matter how significant, you\u2019d have to be satisfied beyond a reasonable doubt of all of the evidence necessary to convict him of that crime. Would you, or wouldn\u2019t you ?\n\u201cA: I would have to be, yes.\n\u201cCourt: You want to question her any further?\n\u201cQ: Yes, sir. Now, Mrs. Graeber, you have heard, also, what has been said about the possible evidence arising on the offense of voluntary intoxication. Have my statements as to that prejudiced you in any way against the defendant?\n\u201cA: No, sir.\n\u201cQ: Are you prejudiced against the use of alcohol and narcotics to the extent that you could not follow the Court\u2019s charge, if the defense arises?\n\u201cA: No, sir.\n\u201cQ: You feel that after talking with the Judge and with me, that Mr. Boyd is innocent as he sits here, is that right, at the present time?\n\u201cA: Yes, sir.\n\u201cQ: You\u2019re sure of that?\n\u201cA: Yes, sir.\n\u201cQ: You\u2019re sort of smiling.\n\u201cCourt: Are you real sure, Mrs. Graeber?\n\u201cA: Yes, sir.\n\u201cCourt: If you serve on this jury, it will be one of the most important things that you do in your lifetime. I want you to be sure about your answer, and there can\u2019t be much equivocation one way or the other.\n\u201cA: Right.\n\u201cCourt : Do you feel that the defendant, as he sits beside his lawyer, that he is innocent and it\u2019s the question for the State to prove him guilty beyond a reasonable doubt before you will find him guilty of any offense?\n\u201cA: Yes, sir.\n\u201cDefense counsel then questioned Mrs. Wagoner and Mrs. Grier.\n\u2022 \u201cThe Court then stated: Let the record show that you made a challenge for cause which was denied and Mrs. Graeber is excused peremptorily, making your fourteenth challenge. What do you say about the others? Exception No. 45.\u201d\nLater during the jury selection defendant challenged Juror Ferris for cause and Juror Blackburn peremptorily. Both challenges were denied. By exhausting his peremptory challenges and thereafter asserting \u201chis right to challenge peremptorily an additional juror\u201d defendant - preserved his exception to the denial of his challenge for cause of Juror Graeber. State v. Allred, 275 N.C. 554, 563, 169 S.E. 2d 833, 838 (1969). Defendant urges that Juror Graeber was biased against him merely because he had been arrested and charged, and that she expressed some difficulty in applying th.e \u201cpresumption of .innocence\u201d principle. While some of Mrs. Graeber\u2019s answers were equivocal, she stated positively: (1) that she believed in capital punishment if the crime \u201cwas proved by the evidence\u201d; (2) \u201cI couldn\u2019t say the man is guilty until the circumstances proves [sic] it one hundred percent\u201d; and (3) that she would have to be satisfied of his guilt beyond a reasonable doubt. \u201cEach party to a trial is entitled to a fair and unbiased jury. Each may challenge for cause a juror who is prejudiced against him. A party\u2019s right is not to select a juror prejudiced in his favor but to reject one prejudiced against him.\u201d State v. Peele, supra, 274 N.C. at 113, 161 S.E. 2d at 573 (1968). Here there is no showing of prejudice against defendant on the part of Juror Graeber. At most her answers reveal a fleeting quibble regarding the effect of defendant\u2019s having been arrested and formally charged. Judge Grist conscientiously pursued this point and her responses both to him and to further questions by defendant\u2019s counsel plainly sustain the implied finding by Judge Grist that she would require the State to prove defendant\u2019s guilt beyond a reasonable doubt. In State v. Allred, supra, we found reversible error in the denial of defendant\u2019s challenge for cause of a juror where \u201cthere was no basis for a finding, if such had been made, that [the juror] was acceptable as a disinterested and impartial juror.\u201d 275 N.C. at 563, 169 S.E. 2d at 838. Here, to the contrary, there is ample basis for such a finding. See State v. Watson, 281 N.C. 221, 227-28, 188 S.E. 2d 289, 293 (1972) ; G.S. 9-14.\nDefendant\u2019s argument that he should have been allowed fourteen peremptory challenges for each capital charge against him, giving him twenty-eight such challenges in all is not persuasive and is contrary to the plain language of G.S. 9-21 (a): \u201cIn all capital cases each defendant may challenge peremptorily without cause 14 jurors and no more.\u201d General Statute 9-21 (b) provides, furthermore, that \u201c[i]n all capital cases the State may challenge peremptorily without cause nine, jurors for each defendant and no more.\u201d It is clear that these statutes allot peremptory challenges to both the State and the defendant on the basis of the number of defendants and not the number of charges against any one defendant. The murder and burglary bills of indictment were properly consolidated, G.S. 15-152; State v. Frazier, 280 N.C. 181, 185 S.E. 2d 652 (1972) ; State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970) ; State v. Morrow, 262 N.C. 592, 138 S.E. 2d 245 (1964), and'once consolidated they became one case for the purpose of trial. The result for trial purposes is the same as if defendant had been tried simultaneously on several counts in one bill of indictment. State v. Alridge, 206 N.C. 850, 175 S.E. 191 (1934).\nIn Alridge three separate non-capital bills of indictment were returned against each of four defendants. The cases were consolidated without objection for trial. The defendants moved to be allowed 12 peremptory challenges apiece, or four challenges per bill of indictment. The governing statute as quoted in the opinion provided that in non-capital cases \u201cevery person on trial shall have the right of challenging peremptorily, and without showing cause, four jurors and no more.\u201d The trial court denied the motion, and this Court found no error. We held that each defendant was entitled to only four peremptory challenges, saying:\n\u201cThe theory of the law is that when two or more indictments for the same offense are consolidated, they are to be treated as separate counts of the same bill. S. v. Stephens, 170 N.C., 745, 87 S.E., 131; S. v. Lewis, 185 N.C., 640, 116 S.E., 259; S. v. Malpass, 189 N.C., 349, 127 S.E., 248; S. v. Beal, 199 N.C., 278, 154 S.E., 604. Consequently, if there is but one bill containing several counts, it would seem manifest that a defendant is not entitled to four peremptory challenges on separate counts in a bill, but that he should be allowed four challenges at the trial on the consolid\u00e1ted bill.\u201d 206 N.C. at 852, 175 S.E. at 192.\nThat defendant here objected to the consolidation of the cases does not distinguish this case in principle from Alridge. That objection raises only the question of whether the cases were properly consolidated. That these are capital cases again makes no material difference. See State v. Woods, 286 N.C. 612, 213 S.E. 2d 214 (1975) where we held it to be error, albeit harmless, for the trial judge to allow the State twenty-two and the defendant thirty-four peremptory challenges when two capital cases and one non-capital case were consolidated for trial.\nII\nThe denial of defendant\u2019s motion before trial that the State be required to elect whether it was proceeding \u201con the felony-murder rule or ... on both indictments without recourse to the felony-murder rule\u201d constitutes defendant\u2019s fifth assignment of error. While the murder indictment itself does not appear in the record it is set out verbatim in Judge Grist\u2019s instructions to the jury as alleging that the defendant did kill Augusta Pearl Henderson \u201cwith premeditation and deliberation, and of his malice aforethought,\u201d the form prescribed by G.S. 15-144. This indictment was sufficient to support a verdict of guilty of first degree murder on the theory that the killing was with malice and after premeditation and deliberation or in the perpetration of some other felony within the meaning of G.S. 14-17. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972) ; G.S. 15-144 and annot. thereunder. Since the murder and burglary charges were consolidated for trial the State could proceed on each indictment separately without relying on the felony-murder rule. State v. Thompson, 285 N.C. 181, 203 S.E. 2d 781 (1974). Under this procedure had the defendant been convicted of both first degree murder and first degree burglary he could have been sentenced on both convictions. Id. at 187-88, 203 S.E. 2d at 785. If the first degree murder case had been submitted to the jury on the theory that the killing took place during the perpetration of the burglary and a conviction obtained thereby, the burglary charge would have been \u201cmerged into and made a part of the first degree murder [charge],\u201d Id. at 188, 203 S.E. 2d at 785, and \u201cno additional punishment [could] be imposed for [the burglary] as an independent criminal offense.\u201d State v. Williams, 284 N.C. 67, 75, 199 S.E. 2d 409, 414 (1973). Judge Grist, after dismissing the first degree murder charge, submitted this case to the jury on each indictment separately without recourse to the felony-murder rule. We do not believe that the State was required to elect upon which theory it would proceed prior to the introduction of evidence. The evidence, theoretically, might have supported both, either, or neither theories. See State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972) ; State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931), It clearly supported application of the felony-murder rule. See State v. Wright, 282 N.C. 364, 192 S.E. 2d 818 (1972) ; State v. Hairston and State v. Howard and State v. McIntyre, 280 N.C. 220, 185 S.E. 2d 633 (1972), cert. denied, 409 U.S. 888, 34 L.Ed. 2d 145, 93 S.Ct. 194 (1972) ; State v. Fox, supra. In not relying on the felony-murder rule, Judge Grist was probably trying to avoid application of the merger doctrine. In any event the lack of a conviction on the murder charge makes this question moot.\nH-f I \u2014 i\nObjections to the introduction of certain evidence form the bases for assignments of error six, seven and eight. Defendant contends that the admission into evidence of a color photograph of the deceased showing the wounds which caused her death when there was a black and white photograph available depicting essentially the same scene was error. We cannot agree. Coroner McLean testified on voir dire that although the black and white photo was \u201cbetter\u201d and \u201clarger\u201d the color photograph did enable one to better distinguish blood stains from bullet holes on the deceased\u2019s bedcovers. The color photograph was used only to illustrate the testimony of the coroner. Part of his testimony dealt with comparing the bullet wounds in Miss Henderson\u2019s body with bullet holes he found in the bedcovers. \u201cThe fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony.\u201d State v. Atkinson, 275 N.C. 288, 311, 167 S.E. 2d 241, 255 (1969) ; accord, State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971) ; State v. Norris, 242 N.C. 47, 86 S.E. 2d 916 (1955) ; State v. Perry, 212 N.C. 533, 193 S.E. 727 (1937).\nDefendant objects to the admission in evidence of a .32 caliber \u201cSpain\u201d revolver (State\u2019s Exhibit No. 6) and expert testimony concerning ballistic tests performed with that weapon. The objection to the expert testimony is based on defendant\u2019s objection to the admission of the revolver. Defendant concedes that the expert testimony is admissible if the revolver was properly identified as the one found in his possession. The sole basis for defendant\u2019s objection to the admission, of the revolver is his contention that a chain of custody between its seizure and its introduction into evidence was not established. Six witnesses testified to establish the chain of custody. Defendant concedes in his brief that \u201c[e]ach of these witnesses other than Tony Wilson was able to indicate a positive identification of this pistol.\u201d Wilson, an identification specialist for the Gaston County Rural Police, testified on direct examination:\n\u201cAt the time I was an ID officer, I received certain evidence involving this case from Mr. Davis and others. I can identify State\u2019s Exhibit No. 6. I got that from Detective Davis. I received that pistol from Detective Davis on the 26th approximately 10:30 in the morning. . . .\n\u201cI can identify State\u2019s Exhibit No. 7, a .22 rifle. I received that from Captain Homesley on the 26th. Along with the rifle and the pistol and other evidence, they were all taken to the Charlotte Crime Lab and at that time turned over to Mr. Sloan.\n\u201cThat is Mr. Sloan. I turned that over on February 1. During the time I had it, it was locked up in the evidence room, Gaston Rural Police Evidence Room. I was the only one that had a key to the evidence room. I\u2019m the evidence officer. It had not been tampered with at all.\n\u201cI took State\u2019s Exhibits 6, the pistol, 7, the rifle, 3, the box, 4, another box, 5 another box, that has been previously identified as to what is in them, and 8, the vial, over to this gentleman.\u201d\nOn cross-examination Wils.on stated:\n\u201cI received this gun from Mr. Davis, also. There is no other particular way I know it is the gun I received from Mr. Davis other than it looks like the gun, the serial number on the bottom of it. I checked the number and it\u2019s recorded in the large folder. I haven\u2019t cross checked that since I\u2019ve been here today. I just assume that\u2019s the one he gave to me. It looks like it.\u201d (Emphasis supplied.)\nDefendant seizes upon the emphasized portion of Wilson\u2019s testimony on cross-examination to support his proposition that Wilson was not able to make a positive identification of State\u2019s Exhibit No. 6 as being the weapon he received from Davis.\nThe argument fails for two reasons. Defendant was found by arresting law enforcement officers \u2014 Thomas Reynolds, Jackie Barrett and Thomas McDevitt \u2014 underneath a single bed in an upstairs apartment. As he got out from under the bed a .32 caliber revolver was found on the floor underneath the head of the bed. Barrett examined the revolver at the scene and there wrote down the serial number. He identified State\u2019s Exhibit No. 6 as having \u201cthe same number that I have here where I wrote it down that day. ... I made that notation on the same day I got the pistol. That pistol has the same serial number that I have here which I got off the butt of the gun. . . . [T] his type weapon is the first one I ever seen like it. I have not seen any others like it since then.\u201d Witness B. J. Sloan, a firearms expert, also identified State\u2019s Exhibit No. 6 by its serial number and make as the .32 caliber revolver upon which he made ballistic comparisons. With this kind of positive identification of State\u2019s Exhibit No. 6 by serial number and make it was unnecessary to show a chain of custody of the weapon in order to put it and the ballistics testimony about it into evidence. See State v. Simmons, 286 N.C. 681, 213 S.E. 2d 280 (1975) ; State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22 (1972) ; State v. Fox, supra; State v. Bass, 249 N.C. 209, 105 S.E. 2d 645 (1958) ; State v. Macklin, 210 N.C. 496, 187 S.E. 785 (1936) ; McCormick, Evidence, \u00a7 212 at 527 (2d ed. 1972) ; 1 North Carolina Evidence 356, n. 11 (Brandis Revision 1973).\nEven if the chain of custody type identification were required, Wilson\u2019s statements on cross-examination that he \u201cassumed\u201d the pistol was the one given him by Davis and that \u201cit looks like it\u201d would not vitiate his identificaton of the pistol so as to break the chain. See State v. Simmons, supra, and cases cited therein. These statements go at most to the weight to be accorded his testimony by the jury. '\nIV\nAlthough defendant\u2019s ninth assignment of error is that his confession was improperly allowed in evidence, his brief concedes that he \u201cis unable to make any persuasive argument concerning error on the part of the trial court in this respect.\u201d Since this is a capital case we have, at defendant\u2019s request, scrutinized the voir dire testimony relating to the admissibility of the confession. This portion of the trial covers 60 pages of the record. Judge Grist made extensive findings of fact, supported by the evidence, which in turn support his conclusions that the confession was made freely and voluntarily after the defendant had been duly advised of his constitutional rights, which he knowingly and understandingly waived before making his statement. There was no error in admitting the confession.\nV\nThe burglary indictment reads in part that defendant \u201cdid break and enter, with intent, the goods and chattels ... to steal, take and carry away and with intent to commit the crime of Murder . \u201d (Emphasis added.) Defendant contends: (1) that for conviction under this indictment the State was required to prove both the intent to steal and the intent to murder; (2) there was no evidence that defendant intended to murder when he broke and entered the house; and (3) his motions for non-suit should have been allowed. His tenth assignment of error is directed to Judge Grist\u2019s denial of these motions. Defendant has abandoned assignment of error eleven. Assignments of error twelve and thirteen are that Judge Grist should have instructed the jury to find both intents alleged before returning a guilty verdict on the burglary indictment. Guided by the authorities that follow we overrule assignments of error ten, twelve and thirteen.\nState v. Christmas, 101 N.C. 749, 8 S.E. 361 (1888), is instructive on these questions. There defendant was indicted for feloniously entering the dwelling house of T. B. Lyman with intent to steal \u201cthe goods, chattels and money of . . . T. B. Lyman, and also the goods, chattels and money of Anna M. Lyman, in the said dwelling-house then and there being.\u201d The evidence tended to show that only the property of Anna M. Lyman was stolen. The trial court instructed the jury that they could convict the defendant if they found beyond a reasonable doubt that he entered the house with intent to steal property of either Mr. or Mrs. Lyman. A motion in arrest of judgment on the ground that the indictment charged two distinct offenses was denied by this Court and we found no error in the trial.\nAnalogous rulings have been made in cases arising under G.S. 14-54 which make it a felony if one \u201cbreaks or enters any building with intent to commit any felony or larceny therein.\u201d (Emphasis supplied.) It has long been the law in this State in prosecutions under this statute and its similar predecessors that where the indictment charges the defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient; and instructions allowing juries to convict on the alternative propositions are proper. State v. Brown, 266 N.C. 55, 145 S.E. 2d 297 (1965) ; State v. Vines, 262 N.C. 747, 138 S.E. 2d 630 (1964) ; State v. Best, 232 N.C. 575, 61 S.E. 2d 612 (1950) ; State v. Mumford, 227 N.C. 132, 41 S.E. 2d 201 (1947) ; State v. Houston, 19 N.C. App. 542, 199 S.E. 2d 668 (1973), cert. denied, 284 N.C. 426, 200 S.E. 2d 662 (1973) ; N.C.P.I. Crim. 214.30.\nIn State v. Simmons, swpra, defendant was tried upon a bill of indictment charging him with first degree murder \u201ccommitted in the perpetration of the felony crime of burglary and the attempted perpetration of the felony crime of robbery.\u201d The defendant there complained of the trial judge\u2019s instructions which permitted the jury to find him guilty of first degree murder if it found that the killing was committed in the perpetration of a burglary or an attempted robbery. Justice Branch, for the Court, wrote:\n\u201cThe requirement that the indictment in such a case as this one be couched in the conjunctive rather than the disjunctive is a sound rule of criminal pleading designed to inform the defendant of the crime for which he stands charged. State v. Sellers, 273 N.C. 641, 161 S.E. 2d 15; 42 C.J.S. Indictments and Information \u00a7 166; 41 Am. Jur. 2d Indictments and Information \u00a7 96. However, where, as here, the felonies charged clearly constitute part and parcel of the same transactions, we perceive no useful purpose in requiring that the proof must indicate the commission of both crimes. A finding that the homicide was committed in the perpetration of either crime suffices to support the conviction of murder in the first degree. We hold that it was not prejudicially erroneous for the trial judge to instruct that sufficient evidence of the perpetration of either felony would suffice to bring defendant within the felony-murder provision of G.S. 14-17.\u201d 286 N.C. at 695,_S.E. 2d at_\nWe, therefore, hold that \u201c[a]n indictment for burglary may lay the offense with several intents, as with intent to steal and intent to murder or to rape, as by alleging the several intents conjunctively in the same count.\u201d 12 C.J.S. Burglary \u00a7 32(a). Such an indictment is not duplicitous. It charges only one offense. Furthermore, when more than one intent is alleged the State need prove only one. It may prove more than one. Upon evidence of more than one intent the trial judge may submit the case to the jury on alternative theories. Cases from other jurisdictions which have considered these propositions have so held. U. S. v. Thomas, 444 F. 2d 919 (D.C. Cir. 1971) ; State v. Berenger, 161 N.W. 2d 798 (Iowa 1968) ; State v. Fox, 80 Iowa 312, 45 N.W. 874 (1890) ; Hardeman v. State, 15 Okla. Crim. 229, 175 P. 948 (1918). Judge Grist was apparently of the opinion that there was evidence only of an intent to commit larceny. He submitted the case to the jury on that theory alone. In this there was no error of which the defendant can complain.\nVI\nDefendant\u2019s assignment of error fourteen brings forward his contention that Judge Grist should not have instructed the jury that as a consequence of a verdict of guilty of burglary in the first degree the defendant would be sentenced to death. There was no error in this instruction. We fail to see how it could prejudice the defendant. We held in State v. Honeycutt, supra, that it was not error for prospective jurors to be informed during voir dire examination in a capital case that the consequences of conviction would be a sentence of death. We have agreed with the contention of defendants that refusal to allow inquiry of prospective jurors as to their beliefs and attitudes toward capital punishment was error prejudicial to them. State v. Bell, 287 N.C. 248, 214 S.E. 2d 53 (1975) ; State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974) ; State v. Carey, 285 N.C. 509, 206 S.E. 2d 222 (1974); State v. Carey, 285 N.C. 497, 206 S.E. 2d 213 (1974). General Statute 15-176.4, in effect at the time of this trial, requires that the court in a capital case \u201cupon request of either party, shall instruct the jury that the death penalty will be imposed upon the return of a verdict of guilty. . . .\u201d Although the record does not reveal that a request for such an instruction was made by either the State or the defendant it was not error to give such an instruction even in the absence of a request. See State v. Britt, supra, where we held that in a capital case if the jury appeared confused as to the possible consequences of its verdict, the trial judge\u2019s failure to instruct that a guilty verdict would result in a mandatory death sentence was error, prejudicial to the defendant.\nFinally, defendant contends that it was unlawful to impose the death penalty in this case. This Court has heretofore considered and a majority has consistently rejected all of his arguments on this point and does so here. State v. Lampkins, 286 N.C. 497, 212 S.E. 2d 106 (1975) ; State v. Avery, supra; State v. Williams, 286 N.C. 422, 212 S.E. 2d 113 (1975) ; State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974) ; State v. Honeycutt, supra; State v. Fowler, 285 N.C. 90, 203 S.E. 2d 803 (1974) ; State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6 (1974) ; State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974) ; State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974) ; State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973).\nWe have carefully considered the entire record and- all of defendant\u2019s assignments of error. In his trial and conviction we unanimously find no error. A majority of the Court also hold that the sentence of death should be sustained.\nFor the reasons stated in the dissenting opinions in State v. Williams, 286 N.C. 422, 434-441, 212 S.E. 2d 113, 121-125 (1975), Chief Justice Sharp, Justices Copeland and Exum dissent from that portion of this opinion affirming the imposition of the death sentence and vote to remand for the imposition of a sentence of life imprisonment.\nNo error in the trial.\nDeath sentence sustained by majority vote.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten and Assistant Attorney General James E. Magner, Jr., for the State.", ", Robert C. Powell for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY H. BOYD\nNo. 7\n(Filed 6 May 1975)\n1. Jury \u00a7 6\u2014 examination as to death penalty views\nThe trial court in a first degree murder and first degree burglary case did not err in permitting the State to question prospective jurors about their beliefs on capital punishment.\n2. Jury \u00a7 7\u2014 death penalty views \u2014 challenge of jurors for cause proper\nThe trial court did not err in allowing the State\u2019s challenges for cause of seven prospective jurors who stated that because of their personal opposition to capital punishment they could not under any circumstances return a verdict the consequences of which would be the imposition of the death sentence.\n3. Jury \u00a7 7\u2014 challenge for cause \u2014 disallowance \u2014 preservation of exception\nBy exhausting his peremptory challenges and thereafter asserting his right to challenge peremptorily an additional juror defendant preserved his exception to the earlier denial of his challenge for cause of a juror.\n4. Jury \u00a7 7\u2014 challenge for cause \u2014 disallowance proper\nThe trial court did not err in denying defendant\u2019s challenge for cause of a juror who stated positively that she believed in capital punishment if the crime \u201cwas proved by the evidence,\u201d and she would have to be satisfied of his guilt beyond a reasonable doubt.\n5. Jury \u00a7 7\u2014 peremptory challenges \u2014 number in capital case\nG.S. 9-21 (a) and (b) allot peremptory challenges to both the State and the defendant on the basis of the number of defendants and not the number of charges against any one defendant; therefore, the trial court properly allowed the defendant who was charged with first degree murder and first degree burglary fourteen rather than twenty-eight peremptory challenges.\n6. Homicide \u00a7 12\u2014 felony-murder \u2014 prosecution for burglary and murder \u2014 no election required\nThe trial court did not err in refusing to require the State to elect prior to trial whether it was proceeding on the felony-murder rule or on both indictments, one for murder and one for burglary, without recourse to the felony-murder rule.\n7. Homicide \u00a7 20\u2014 color photograph of deceased \u2014 admissibility to illustrate coroner\u2019s testimony\nThe trial court did not err in allowing into evidence a color photograph of the deceased\u2019s body for the purpose of illustrating the coroner\u2019s testimony though there was available a black and white photograph depicting essentially the. same scene. . . ,\n8. Criminal Law \u00a7 57\u2014 revolver seized at defendant\u2019s arrest \u2014 necessity for showing chain of custody\nWhere officers seized a .32 caliber revolver in plain view at the time of defendant\u2019s arrest and recorded the serial number of the revolver, and a firearms .expert identified the pistol at trial by its serial number and make, it was unnecessary for the State to show a chain of custody of the weapon in order to put it and the ballistics testimony about it into evidence.\n9. Burglary and Unlawful Breakings \u00a7 5\u2014 first degree burglary \u2014 intent to steal and intent to murder \u2014 necessity for proving both\nBurglary indictment charging that defendant \u201cdid break and enter, with intent, the goods and chattels ... to steal, take and carry away and with intent to commit the crime of murder ...\u201d did not require the \u2022 State to prove both \u2022 the intent to steal and the intent to murder in order to prove defendant\u2019s guilt of burglary. \u2022\n10. Burglary and Unlawful Breakings \u00a7 6; Criminal Law \u00a7\u00a7 135, 138\u2014 first degree burglary \u2014 instruction as to death penalty\nThe trial court did not err in instructing the jury that as a consequence of a verdict of guilty of burglary in the first degree the defendant would be sentenced to death.\n11. Constitutional Law \u00a7 36; Burglary and Unlawful Breakings \u00a7 8\u2014 first degree burglary \u2014 constitutionality of death sentence\nDeath penalty imposed in a first degree burglary case is constitutional.\nChief Justice Sharp and Justices Copeland and Exum dissent as to death sentence.\nDefendant appeals from the judgment of Grist, J., July, 1974 Special Criminal Session, Lincoln Superior Court.\nDefendant, Johnny H. Boyd, was arrested on January 26, 1974, and charged in separate warrants with first degree murder of Augusta Pearl Henderson and first degree burglary of her dwelling, both alleged to have occurred on January 22, 1974. True bills of indictment were returned in both cases. On the State\u2019s motion and over defendant\u2019s objection both bills of indictment were consolidated for trial.\nThe State\u2019s evidence tended to show that Augusta Pearl Henderson, an 84-year-old retired school teacher who lived alone, was killed during the course of a burglary of her home in the early morning hours of January 22, 1974. Her home was discovered ransacked and she was found in her bed on the afternoon of January 22, dead from multiple bullet wounds. In a signed statement made to police officers after his arrest, introduced in evidence against him, defendant admitted his participation in the burglary and implicated two other persons. He denied any involvement in the killing, stating that this had occurred while he was searching another part of the house for money and valuables.\nVarious witnesses testified about two weapons used in the shooting. Paul Brown stated that defendant had borrowed his .22 caliber rifle the day before the burglary and returned it the next day after the crime had taken place. Coleman Kendrick identified a .32 caliber revolver found in defendant\u2019s possession when he was arrested as one belonging to Augusta Pearl Henderson. Expert testimony by B. J. Sloan, a firearms examiner, revealed that these were the two weapons with which Miss Henderson was shot and killed. Sloan testified that through the use \u00f3f a comparison microscope he examined at .32 caliber bullet taken from the deceased\u2019s body and another .32 caliber bullet that, he test-fired from the revolver. Marks on the bullets made by the inside of the barrel matched, indicating- that the two bullets were fired by the same weapon. Sloan also examined a spent .'22 caliber cartridge casing found in Miss Henderson\u2019s bedroom with one test-fired from the rifle. The markings on the two cartridges made by the firing pin and the extractor indicated that the two cartridges had been fired from the same weapon. All other pertinent facts will be discussed in the body of the opinion.\nDefendant declined to present evidence.\nJudge Grist submitted the case to the jury on. charges of first degree burglary and second degree murder. The jury returned a verdict of guilty of first degree burglary but announced that it was hopelessly deadlocked on the second degree murder charge. Judge Grist declared a mistrial on the murder charge and sentenced defendant to death on the burglary conviction.\nAttorney General Rufus L. Edmisten and Assistant Attorney General James E. Magner, Jr., for the State.\n, Robert C. Powell for defendant appellant." }, "file_name": "0131-01", "first_page_order": 159, "last_page_order": 175 }