The defendant's counsel argues that the defendant is entitled to a new trial on the kidnapping charge and a directed verdict of not guilty on the charge of rape, alleging the court committed errors of law: (1) By refusing to permit the investigating officer to repeat to the jury exculpatory statements made by the defendant at the time of the arrest; (2) and (3) in denying the defendant's motions to dismiss at the close of the State's evidence and repeated after the defense rested without offering evidence; (4) in charging the jury that a verdict either of guilty or not guilty must be unanimous; and (5) in permitting the clerk to poll the jury in the manner disclosed by the record.
The defendant's purported exculpatory statements were made to the arresting officer ten days after the offenses. They were properly excluded. "It is settled by repeated adjudications, that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestae." State v. Chapman, 221 N.C. 157, 19 S.E.2d 250. State v. Peterson, 149 N.C. 533, 63 S.E. 87; State v. Stubbs, 108 N.C. 774, 13 S.E. 90. The assignment of error is without merit.
The evidence of Mrs. Brown was full and complete, disclosing all elements of the crimes charged. She made immediate report to the officers and directed and led them to the place where the assaults were committed. She reported to the officers
The defendant challenges the court's instruction that the verdicts whether guilty or not guilty must be unanimous. The charge is correct. The court accepts only a unanimous verdict reported by the jury. If the jury reports a failure to agree, the practice is for the judge to instruct the jury to continue its deliberations if a verdict seems at all likely. However, upon a finding the jury is hopelessly deadlocked, it is proper for the judge to declare a mistrial and reset the case for retrial. The judge, especially in a capital case, should make inquiry and should find facts before ordering a mistrial. After a jury is empaneled, jeopardy usually attaches. Hence the record should show just cause for a mistrial. State v. Boykin, 255 N.C. 432, 121 S.E.2d 863; State v. Cofield, 247 N.C. 185, 100 S.E.2d 355; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243.
Since the defendant finds fault with the form of the verdict and the manner of its return and of the polling of the jury, we quote here the record dealing with these subjects:
The record also discloses that each of the other eleven who were members of the jury was asked the same questions and made precisely the same answers as did Lynda Green. The verdicts are regular in all respects.
The defendant's objections to his trial are utterly without merit. Only the gravity of the charges, and the findings of guilt thereon, justify this extended discussion.