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297 N.C. 267

254 S.E.2d 531

State v. Drumgold

Supreme Court of North Carolina

Decided May 17, 1979

Supreme Court of North Carolina · decided 1979-05-17

Key passage — most relied on by later courts

““It is well settled that ‘a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.’ State v. Palmer, 293 N.C. 633, 643-44 , 239 S.E. 2d 406, 413 (1977). On the. other hand, the trial court need not submit lesser degrees of a crime to the jury ‘when the State’s evidence is positive as to. each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime. ’ State v. Harvey, 281 N.C. 1, 13-14 , 187 S.E. 2d 706, 714 (1972). (Emphasis added.)””

quoted by 2 later decisions, including State v. Faircloth, 138 N.C. App. 89 - State v. Holder

Relies on State v. Harvey · Fowler v. North Carolina · State v. Palmer

Good law ✅— No negative treatment on recordhow we know

Decided 1979-05-17

How this case has been cited

Cited by 46 later decisions (2 by the Supreme Court) — most recently July 2004 · most notably Beck v. Alabama (1980), State v. Kennedy (1987)

44 state decisions

2601979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

COPELAND, Justice.

¶1 The defendant contends the trial court erred in not submitting second degree rape to the jury as an alternative to a verdict of first degree rape. We agree; therefore, the defendant must be granted a new trial.

¶2 It is well settled that “a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.” State v. Palmer, 293 N.C. 633, 643-44, 239 S.E. 2d 406, 413 (1977). On the other hand, the trial court need not submit lesser degrees of a crime to the jury “when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.” State v. Harvey, 281 N.C. 1, 13-14, 187 S.E. 2d 706, 714 (1972). (Emphasis added.)

¶3 In this case, a conviction of first degree rape depended, inter alia, on proof that the defendant overcame Mrs. Epps’ resistance by the use of a deadly weapon. See G.S. 14-21(1)(b) (1977 Cum. Supp.). The defendant presented evidence through several witnesses that he did not have a gun on the day in question. Therefore, there was conflicting evidence on an essential element of the crime charged. Furthermore, there was evidence that at one point the defendant threatened to kill Mrs. Epps, and Officer Bowden testified that when he saw Mrs. Epps on 6 June 1978, “she had what appeared to be an abrasion on the left side of her face.” The jury could have found that Mrs. Epps submitted to in *272 tercourse with the defendant because of fear or duress. See generally, State v. Dull, 289 N.C. 55, 220 S.E. 2d 344 (1975), death sentence vacated in 428 U.S. 904, 49 L.Ed. 2d 1211, 96 S.Ct. 3211 (1976). Under these facts, the trial court should have submitted second degree rape to the jury as a possible verdict. Its failure to do so entitles the defendant to a new trial.

¶4 We need not discuss defendant’s two other assignments of error, as they are not likely to recur at the new trial.

¶5 For the foregoing reason, we order that defendant be granted a

¶6 New trial.

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