State v. Blalock

9 N.C. App. 94 | N.C. Ct. App. | 1970

Hedrick, J.

By assignments of error numbers 1, 3, 4, 7 and 14, the defendants contend that the trial judge, during the course of the trial, made remarks and asked questions of some of the witnesses which amounted to an expression of an opinion by the judge in violation of G.S. 1-180. In North Carolina it is improper for a trial judge to question a witness for the purpose of impeaching his testimony. State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950). However, it is a well settled rule in this State that a trial judge may ask questions of a witness in order to obtain a proper understanding and clarification of the witness’ testimony. State v. Strickland, 254 N.C. 658, 119 S.E. 2d 781 (1961) ; State v. Humbles, 241 N.C. 47, 84 S.E. 2d 264 (1954) ; State v. Stevens, 244 N.C. 40, 92 S.E. 2d 409 (1956) ; State v. Furley, 245 N.C. 219, 95 S.E. 2d 448. This rule is a necessary one in our system of criminal law since there are times during the course of a trial, and especially in a trial involving facts as complicated as in the present case, when the judge finds it necessary to ask the witness competent questions to aid in clarifying the witness’ testimony. State v. Hoyle, 3 N.C. App. 109, 164 S.E. 2d 83 (1968) ; State v. Perry, supra.

We have examined the testimony of these witnesses and after considering the questions propounded by the judge, in light of all the attendant facts and circumstances, we believe that the questions asked by the judge were for the purpose of clarification and were not expressions of opinion, and did not tend to impeach the testimony of the witnesses. These assignments of error are overruled.

The defendants contend that the court erred in threatening to issue bench warrants for the arrest of any witnesses who testified that they participated in the crime of aiding and abetting prostitution. The record shows the facts to be as follows: Roger Watson, testifying for the defense, stated that everyone at the house that night, including himself twice, had intercourse with Pat Hinton. Following this testimony, Judge Carr excused the jury and called the solicitor’s attention to the provisions of G.S. 14-203 and G.S. 14-204 relating to prostitution. He stated that he felt the witness had violated this statute but that he had grave doubts about the corpus delicti. When reminded by one of the defendant’s attorneys that the witnesses were present, Judge Carr stated that he wanted them to know what the law was and what the consequences of their actions could be under the law. After the jury returned, the record shows that Donnie Marshburn and Donald Jones took the witness stand and testified that each of the men present on the night in question took turns going into the bedroom of Pat Hinton where they had intercourse with her.

The record is clear that the remarks by Judge Carr had no adverse effect on the two witnesses that testified after he had informed them of the possible consequences of their testimony. This assignment of error is overruled.

The defendants argue that the court committed prejudicial error in allowing the solicitor on cross-examination to ask one of the defendant’s witnesses whether he would be willing to take a lie detector test as to his testimony. The record discloses that the solicitor asked the witness Jones the following question: “Will you take a lie detector test regarding your testimony today.” No objection appears in the record as to this question or the answer. Later, the witness was asked the same question and an objection was made by the attorney for the defendant Blalock who afterwards stated that he had no objection to the question being asked once more; whereupon, the question was asked the third time without any objection and the witness answered. Subsequently, an attorney for the defendant Andrews stated to the court that this is highly improper and asked the court to instruct the jury on the admissibility of lie detector tests in North Carolina. Later, when the question was asked for the fourth time, counsel for one of the defendants objected.

It is the general rule that unless an objection is made at the proper time, it is waived. Stansbury, N.C. Evidence, 2d Ed., Sec. 27, page 49. In case of a specific question, objection should be made as soon as the question is asked and before the witness has had time to answer. Stcmsbury, N.C. Evidence, 2d Ed., Sec. 27, page 51, and cases cited thereunder. If testimony offered by a witness is not competent, objection to its admission should be interposed to the question at the time it was asked and when the objection is not taken in apt time it is waived. State v. Hunt, 223 N.C. 173, 25 S.E. 2d 598 (1943). The defendants waived any objections they might have had to the question by failing to object in apt time the first three times it was asked. This assignment of error is overruled.

By assignment of error 16, based on exceptions 8, 9 and 21, the defendants challenged the court’s rulings in denying their motions for judgment as of nonsuit. The defendants have failed to argue this assignment in their brief, and the same is therefore deemed abandoned. Moreover, in their brief, the defendants state: “Defendants concede that there was sufficient evidence, taken in the light most favorable to the State, to sustain a conviction for rape in each case.”

By assignment of error 17 the defendants contend that the court committed prejudicial error in defining assault as an attempt or offer with force and violence or with rudeness to do hurt to another. The defendants in this argument have lifted one sentence out of the court’s charge and attempted to show that the definition is incorrect and inadequate. When the charge is considered contextually, it is our opinion that the court properly and adequately instructed the jury as to all the elements of the crimes for which the defendants were being tried. This assignment of error is without merit.

By assignments of error numbers 18, 20, 21 and 22, the defendants contend that the court committed prejudicial error in reviewing the evidence for the State and the defendants, and in stating their contentions. Generally, an inadvertence in stating the contentions of the parties or in recapitulating the evidence must be called to the trial court’s attention in time for correction. 3 Strong, N. C. Index 2d, Criminal Law, Sec. 113, page 15. The record fails to show that this was done in the instant case. We have examined each portion of the charge to which all these exceptions are directed and find no material misstatement of the evidence or contentions of the State or the defendants. Those portions of the charge excepted to related to subordinate features of the case, and even if it can be said that the judge inadvertently misstated some of the contentions, the defendants have failed to show that they were in any way prejudiced by such statements. These assignments of error are overruled.

The defendants contend that the judge committed error in his charge by the unqualified use of the words “assault” and “rape” or “raping” in referring to the charges against the defendants. They argue that the judge, by the use of these words, was leading the jury to assume that the facts in controversy had been established. We do not agree with this contention. The charge, when read as a whole, does not show that the judge in any manner expressed any opinion in violation of G.S. 1-180 in reviewing the evidence or stating the contentions of the defendants. This assignment of error is without merit.

We have examined all of the defendants’ exceptions and assignments of error brought forward on this appeal and conclude that the defendants had a fair trial in the superior court free from prejudicial error.

No error.

Brock and Britt, JJ., concur.