
165 S.E.2d 481 (1969)
275 N.C. 77
STATE
v.
Carl Leonard WILLIAMS and Eddie Joel Williams.
No. 661.
Supreme Court of North Carolina.
January 31, 1969.
*485 T. Wade Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.
MacRae, Cobb, MacRae & Henley, Fayetteville, for defendant appellant Carl Leonard Williams.
Charles G. Rose, Jr., Fayetteville, for defendant appellant Eddie Joel Williams.
BOBBITT, Justice.
Defendants assign as error the action of the court "in excusing from the jury those jurors who expressed the personal conviction that they were opposed to capital punishment." This assignment is based solely on the following statement in the agreed case on appeal: "In the selection of the jury the court excused from the jury all those jurors who stated that they were opposed to Capital Punishment. EXCEPTION NO. 1." Defendants rely upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.
A jury had convicted Witherspoon of murder and had fixed his penalty at death. In granting certiorari, the Supreme Court of the United States limited consideration to the following question: "Whether the operation of the Illinois statute providing that the state could challenge for cause all prospective jurors who were opposed to, or had conscientious scruples against, capital punishment deprived the petitioner of a jury which fairly represented a cross section of the community, and assured the state of a jury whose members were partial to the prosecution on the issue of guilt or innocence, in violation of the petitioner's rights under the Sixth and Fourteenth Amendments to the United States Constitution." Witherspoon v. Illinois, 389 U.S. 1035, 88 S.Ct. 793, 19 L.Ed.2d 822.
In Witherspoon, Mr. Justice Stewart, expressing the views of five members of the Court, stated: "Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected." (Our italics.) 391 U.S. at 521-523, 88 S.Ct. at 1776-1777, 20 L.Ed.2d at 784-785.
Directly pertinent to the present case, Mr. Justice Stewart stated: "We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. *486 In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was. * * * It has not been shown that this jury was biased with respect to the petitioner's guilt." 391 U.S. at 517-518, 88 S.Ct. at 1774-1775, 20 L.Ed.2d at 782-783. Footnote 21 of the majority opinion includes the following: "Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as oppose[d] to the sentence in this or any other case." A separate opinion of Mr. Justice Douglas, who considered the basis of decision too narrow, epitomizes the holding of the majority in these words: "Although the Court reverses as to penalty, it declines to reverse the verdict of guilt rendered by the same jury." 391 U.S. at 531, 88 S.Ct. at 1782, 20 L.Ed.2d at 790.
It is noted that Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissented from the decision in Witherspoon.
In State v. Bumper (erroneously designated Bumpers), 270 N.C. 521, 155 S.E.2d 173, the jury returned a verdict of guilty of rape with recommendation that the punishment be imprisonment for life. Upon this verdict the court, in compliance with the mandate of G.S. § 14-21, pronounced judgment imposing a sentence of life imprisonment. This Court found "No error." In Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, the Supreme Court of the United States reviewed our decision on the two grounds on which it was attacked by Bumper, namely, (1) that his constitutional right to an impartial jury had been violated because the prosecution was permitted to challenge for cause all prospective jurors who stated their opposition to capital punishment, and (2) that a rifle introduced in evidence against him was obtained by a search made in violation of the Fourth and Fourteenth Amendments. Our decision was reversed on the ground the search was unlawful and therefore the rifle should not have been admitted in evidence.
With reference to Bumper's claim that his constitutional right to an impartial jury had been violated, Mr. Justice Stewart, expressing the views of five members of the Court, said: "In Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L. Ed.2d 776, decided today, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been removed for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. (Citations.) We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily `prosecution prone,' and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis." 391 U.S. at 545, 88 S.Ct. at 1790, 20 L.Ed.2d at 800-801.
The foregoing is quoted with approval by Higgins, J., in State v. Peele, 274 N.C. 106, 113-114, 161 S.E.2d 568, 573-574, certiorari denied 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590, which, like Bumper, did not involve a death sentence and is direct authority in this jurisdiction for decision herein.
In Bumper, Mr. Justice Douglas, concurring in result, expressed the view that reversal should have been based also on the ground Bumper had been denied "the right to trial on the issue of guilt by a jury representing *487 a fair cross-section of the community" since the record showed "that 16 of 53 prospective jurors were excused for cause because of their opposition to capital punishment."
The views of the majority in Crawford v. Bounds, 4 Cir. 1968, 395 F.2d 297, seemingly are in accord with those expressed in the dissenting opinion of Mr. Justice Douglas in Bumper. It is noted that the Supreme Court of the United States in Bounds v. Crawford, 393 U.S. 76, 89 S.Ct. 234, 21 L.Ed.2d 62, vacated the judgment and remanded the case to the Court of Appeals "for further consideration in light of Witherspoon v. Illinois," supra, "and for consideration of the other constitutional questions raised in the case."
Here, as in Bumper and Peele, death sentences are not involved. In accord with Witherspoon, Bumper and Peele, we reject the idea the jurors are biased in favor of conviction simply because they do not have conscientious or religious scruples against capital punishment.
"Each 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's right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him." State v. Peele, 274 N.C. at 113, 161 S.E.2d at 573. See also, State v. Spence, 274 N.C. 536, 538, 164 S.E.2d 593, 594. In State v. Peele, supra, Higgins, J., in his opinion for the Court, cites federal cases substantially in accord with the stated North Carolina rule.
Nothing in the record before us indicates that any member of the jury which tried defendants was biased in favor of conviction or otherwise prejudiced against defendants on account of his views on capital punishment or otherwise. Nor does it appear that the jury included any juror who was challenged by defendants. In accord with the decision of the Supreme Court of the United States in Bumper, and our own decision in Peele, we hold the record fails to show prejudice to defendants in respect of the manner in which the jury was selected. Although distinguishable factually in certain particulars, 1968 decisions generally in accord with the views expressed herein include the following: Commonwealth v. Wilson, 431 Pa. 21, 30, 244 A.2d 734, 739; Commonwealth v. Sullivan, 239 N.E.2d 5, 11 (Mass.); People v. Speck, 242 N.E.2d 208, 225-228 (Ill.).
At the close of the evidence, each defendant moved for judgment as in case of nonsuit and excepted to the court's denial thereof. Assignments of error based on these exceptions are without merit.
The only reasonable inference that may be drawn from the evidence is that Mrs. Hargrove did not accompany defendants voluntarily at any time or under any circumstances but that she was forcibly put in their car by defendants and confined in their custody continuously by force, threats of force and fear from the time and point of collision on the Reilly Road until she was brought back and left there. Hence, there was ample evidence to support the convictions of kidnapping in violation of G.S. § 14-39. State v. Bruce, 268 N.C. 174, 182-183, 150 S.E.2d 216, 223, and cases cited.
The only reasonable inference that may be drawn from the evidence is that Mrs. Hargrove did not consent that either of defendants have sexual intercourse with her. On the contrary, she pleaded persistently that they refrain from forcing her to do so. All the evidence tends to show she submitted at a time and place when she was helpless to protect herself and her submission was induced by fear of death or serious bodily harm if she resisted. Hence, in accordance with legal principles recently stated by Parker, C. J., in State v. Primes, N.C., 165 S.E.2d 225, 230, there was ample evidence to support the convictions for rape.
The portion of the charge to which defendants excepted is in full accord with the *488 legal principles stated in State v. Primes, supra, and cases cited. The assignment of error based on this exception is without merit.
Defendants excepted to the court's failure to instruct the jury they could return a verdict of guilty of an assault with intent to commit rape. The statutes pertinent to a consideration of the assignment of error based on these exceptions are quoted below.
G.S. § 15-169 provides: "On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character." (Our italics.)
G.S. § 15-170 provides: "Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime."
G.S. § 15-169 and G.S. § 15-170 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516, and cases cited. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547.
All the evidence is to the effect that each defendant had actual sexual intercourse with Mrs. Hargrove and that she, kidnapped, captive and helpless, submitted solely because fearful of death or serious bodily harm if she resisted. There is no particle or trace of evidence that Mrs. Hargrove at any time willingly permitted either defendant to have sexual intercourse with her or willingly remained in the presence of defendants. There being no evidence that would warrant a verdict of guilty of the included crime of assault with intent to commit rape, the court properly refused to instruct the jury with reference to such verdict.
Defendants excepted to and assign as error the court's failure to strike from the signed transcript of Carl's statement the following: "I went AWOL from Fort Hood, Texas on 18 October 1967, along with Eddie Joel Williams." For reasons stated below, a new trial must be awarded Eddie. Hence, we consider this exception with specific reference to the case against Carl.
Immediately after the quoted statement, Carl related where he was between October 18, 1967, when he left Colleen, Texas, until his arrival "about 2:00 or 2:30 a.m. on the 15th of November, 1967," in the Fort Bragg area. There was evidence, admitted without objection, that Carl, prior to his arrest on November 15th, was asked by an M.P. for his ID card, driver's license and registration card; that he produced his ID card but failed to produce a driver's license or a registration card; and that, in response to an inquiry as to his unit, gave "a unit which was a Fort in Texas." Carl was wearing civilian clothes.
The rule upon which Carl bases this contention is well stated as follows: "Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime." Stansbury, *489 North Carolina Evidence, Second Edition, § 91. The general rule and the exceptions thereto are set forth fully, with copious citations, in State v. McClain, 240 N.C. 171, 81 S.E.2d 364.
Whether Carl was AWOL, a violation of the Uniform Code of Military Justice, 10 U.S.C.A. § 886, has no significant relationship to whether he committed the crimes for which he was indicted, tried and convicted. Conceding, arguendo it would have been technically correct to strike this particular sentence from Carl's statement, the failure to do so cannot be considered prejudicial. It would seem his AWOL status could be inferred clearly from evidence admitted without objection. In any event, we cannot conceive that the jurors could have been affected to any extent by this reference in Carl's statement that he went AWOL on October 18, 1967, from Fort Hood, Texas. His entire statement corroborates and in large measure specifically confirms the testimony of Mrs. Hargrove.
"Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result." 3 Strong, North Carolina Index 2d, Criminal Law § 169, p. 135. Recent decisions affirming and applying this rule include the following: State v. Temple, 269 N.C. 57, 66, 152 S.E.2d 206, 212; Gasque v. State, 271 N.C. 323, 340, 156 S.E.2d 740, 752. Defendant's (Carl's) assignment of error is without substance and hence without merit.
Consideration of Carl's appeal fails to disclose prejudicial error.
There remains for consideration the impact on Eddie's conviction of the decision on May 20, 1968, by the Supreme Court of the United States, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which, overruling prior decisions, held that the extrajudicial confession of a defendant who did not testify at trial, which confession incriminated his codefendant, was not admissible in evidence notwithstanding the presiding judge instructed the jury explicitly that it was admitted and to be considered only against the confessing defendant. In Roberts v. Russell, 392 U.S. 293, 20 L.Ed.2d 1100, 88 S.Ct. 1921, the Supreme Court held that Bruton is to be applied retroactively. In State v. Fox, 274 N.C. 277, 163 S.E.2d 492, where the prior rule in this jurisdiction and in the federal courts and the changes wrought by Bruton are fully discussed by Sharp, J., it is held that Bruton "is binding upon this Court * * *." Accord: State v. Parrish, N. C., 165 S.E.2d 230.
Eddie was tried and convicted in April, 1968, prior to the decision in Bruton. The record does not show Eddie's counsel objected to the admission of any portion of Carl's confession other than the sentence relating to their status as AWOL. The record contains no instruction by the presiding judge that Carl's confession was admitted only as against Carl. Nor does the record show Eddie's counsel requested that the court give such instruction. While appropriate at that time, such instruction, when tested by Bruton, would have been of no avail.
The assignments of error, in referring to Carl's confession, are concerned only with the sentence relating to their AWOL status. Moreover, the brief filed in behalf of Eddie attacks the admissibility of Carl's statement solely on that ground.
Notwithstanding the foregoing, under the law as established in Bruton, Eddie has been denied a constitutional right, namely, "the Sixth Amendment's right of an accused to confront the witnesses against him," this being a fundamental right made obligatory on the States by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926; State v. Fox, 274 N.C. at 291, 163 *490 S.E.2d at 502. Consequently, for prejudicial error against Eddie on account of the admission of the confession of Carl, Eddie must be and is awarded a new trial.
As to Carl Leonard Williams: No error.
As to Eddie Joel Williams: New trial.
