STATE v. WAY

No. 51.

254 S.E.2d 760 (1979)

STATE of North Carolina v. Donnie Leon WAY.

Supreme Court of North Carolina.

May 17, 1979.


Attorney(s) appearing for the Case

Grant Smithson, Asst. Public Defender, Charlotte, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rudolph A. Ashton, III, Raleigh, for the State.


COPELAND, Justice.

The defendant contends the trial court erred in its instruction to the jury on withdrawn consent. We agree; therefore, the defendant must be granted a new trial.

After the jury's deliberations had begun, they returned to the courtroom and asked the judge "whether consent can be withdrawn." The court then instructed them that "consent initially given could be withdrawn and if the intercourse continued through use of force or threat of force...

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