18 N.C. App. 204 | N.C. Ct. App. | 1973
Defendant assigns as error the admission of certain testimony by Officer B. F. Smith, and the court’s refusal to allow defendant’s motion to strike that testimony. Officer Smith investigated the accident and testified that he detected an odor of alcohol on defendant’s breath. Officer Smith then testified, over objection, that he found a curved' cork stopper in defendant’s automobile. This cork was about an inch long and had part of a stamp or piece of paper attached to it. Officer Smith testified that he found an alcoholic beverage bottle at the scene of his investigation, and “determined that the cork stopper . . . would fit the bottle and the stamp or paper on the neck of the bottle.”
Defendant contends that this testimony was irrelevant and immaterial in that the bottle found was not linked to the defendant. Officer Smith testified that he detected an odor of alcohol on defendant’s breath and that he found a bottle cork in defendant’s car. An alcoholic beverage bottle was discovered at the scene of the investigation. The cork stopper fit this bottle and the paper on the cork, according to Officer Smith, meshed with that on the neck of the bottle. There is a reasonable nexus between this testimony and defendant. The. matching cork was found in defendant’s automobile. The testimony was properly admitted. See Stansbury, North Carolina Evidence (Brandis Revision), § 78. This assignment of error is overruled.
Defendant excepts to the introduction into evidence of the death certificate of plaintiff’s intestate, the reading of portions of this certificate to the jury, and the court’s refusal to allow defendant’s motion to strike such evidence. The following information was read from the death certificate to the jury: “Name of deceased: Weldon D. Parrish; date of death, July 14, 1968; immediate cause—multiple injuries; place of injury — Stronach Avenue, Wayne County, North Carolina. Decedent pronounced dead at 1:15 a.m., July 14, 1968.” A death certificate is competent in evidence to prove the fact of death, the time and place where it occurred, the identity of the deceased, the bodily injury or disease which was the cause of death, and other matters relating to the death. 3 Strong, N. C. Index, Death, § 1, p. 200. The statements read to the jury were competent evidence. The death certificate itself was not included in the record on appeal. Therefore, we presume that it contained no statements from unidentified sources, repeated or summarized in the certificate, which would be incompetent in evidence. This assignment of error is overruled.
In the instructions to the jury, recapitulation of all the evidence is not required. The trial judge is only required to state the evidence to the extent necessary to explain the application of the law thereto. State v. Hardee, 3 N.C. App. 426, 165 S.E. 2d 43. The omissions defendant excepts to in the trial court’s recapitulation of the evidence involved a subordinate issue in the case, the credibility of a particular witness, which was not necessary to explain the application of the law to the evidence. Defendant did not request instructions on this subordinate issue. This assignment of error is overruled.
We have carefully reviewed defendant’s other assignment of error' to the trial court’s charge to the jury, and we find no prejudicial error.
Defendant also excepts to the trial court’s refusal to set aside the verdict and grant defendant a new trial. Defendant contends that plaintiff was awarded excessive damages. We find no merit in this contention.
No error.