270 N.C. 283 | N.C. | 1967
The defendant groups his exceptions into two categories. The first of them is to the action of the court in sustaining the State’s objection to some eleven questions asked by his counsel, most of which were asked of the State’s witnesses. On cross examination it would appear that the court was correct in all the rulings, but in none of them is the expected answer of the witness shown, and thus we are left to conjecture as to whether the answers would have been favorable to the defendant or unfavorable.
The ruling requiring that the proposed answers be shown is not a pure technicality — it is a practical requirement. Unless the answer would be favorable to the propounder, he has not been disadvantaged, and if he would have been, the trial court, and we, are entitled to that knowledge. Neither should be required to surmise what the answer might have been.
In State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342, Denny, J. (later C.J.) said:
“The record does not disclose what the reply of the witness would have been if she had been permitted to answer; consequently, it is impossible for us to know whether the ruling was prejudicial to the defendant or not . . . the burden is upon the appellant not only to show error but to show that such error was prejudicial to her. We cannot assume that the answer of the witness would have been in the affirmative ... it is what the witness would have said in response to the question, if she had been permitted to answer, that would enable us to determine whether the appellant was prejudiced by the ruling below.”
Chief Justice Denny quotes from other cases:
“ ‘Since the record fails to disclose what the witness would have said, we cannot assume that his answer would have been favorable to the defendant. It would be vain to grant a new trial upon the hazard of an uncertain answer by the witness.’ ” And “ ‘The record does not show what the answer of the witness would have been if permitted to answer. Competency of the testimony is not, therefore, presented by the assignments of error.’ ”
If the question and proposed answer are of substantial import, the answer can be supplied then by excusing the jury and having the witness make it for the stenographic record. If this procedure is not deemed practical and is too time-consuming, the answer may be supplied later by order of the court or upon agreement of counsel.
The other group of exceptions relate to the judge’s charge. The criticism is directed towards the following summarized statements of the court: (1) that the solicitor was not seeking a verdict of first degree murder but a verdict of guilty of murder in the second degree or manslaughter; (2) that it was for the jury to determine the degree of guilt, if any, “or to say — that he is not guilty of either offense”; (3) the use of excessive force to repel an assault constitutes manslaughter; and (4) the court’s reference to “perfect and imperfect right of self-defense.”
An examination of the entire charge with particular referencé to the exceptions reveals no error; and, in fact, it is a very clear, thorough and proper .charge. Even .taken alone, none, of the exceptions are justified, and in each instance the quoted section is preceded, or followed by, full, and correct statements of the law.
This was a typical case for determination by a jury. The State’s evidence showed a completely unjustified killing, while the defendant’s evidence would, if believed, justify a verdict of not guilty upon the grounds of self-defense. The evidence amply sustained a verdict of guilty of manslaughter, and in the trial we find
No error.
