State v. . BrittState v. . Britt
- Reporters:
- , ,
- Before:
- Denny
Tbе appellant has abandoned bis first seven and tbe tenth exceptions.
Tbе court, over tbe objection of tbe defendant, permitted Willie M’Wbite, a State’s witness, to testify to a conversation which be bad with tbe wife of tbe defendant, in tbe absence of tbe defendant, as to tbe manner in which tbe deceаsed, Jetter T. Connor, came to bis death. Tbe wife of tbe defendant bad already been on tbe witness stand and testified tbat tbe deceased attackеd tbe defendant with a butcher knife. Her testimony was in conflict with her prior statements, according to tbe testimony of tbe witness M’Wbite. And, in giving tbe State’s contentions in tbe сharge to tbe jury, bis Honor said: “Tbe State contends . . . tbat you should be satisfied from tbe testimony of another M’Wbite, Willie, I believe they called him, who shortly thereaftеr bad gone to talk with tbe witness, Columbia, and tbat she told him tbat her husband bad killed him with bis band, and no mention was made of any knife, and from all tbe statements you should be satisfied, in tbе first place, beyond a reasonable doubt, there was no knife, and in tbe sеcond place, you should be satisfied tbe knife bad been taken from tbe рossession of tbe decedent and be was wholly and completely unarmed or disarmed at tbe time tbe blow was administered tbat proved to be fatal tо tbe decedent, and tbat at least you should return a verdict of at least guilty of manslaughter.”
Tbe exceptions to tbe admission of tbe above evidenсe and to the foregoing part of tbe charge, constitute tbe defendant’s sixth assignment of error.
It was competent for tbe State to contradict tbe testimony of tbe defendant’s wife, by showing prior inconsistent statements made by her, *367 аnd tbe evidence of tbe witness M’Wbite was competent for that purposе. However, tbe defendant did not request that this evidence be considered only for tbe purpose of contradicting or impeaching tbe testimony of bis wifе and not as substantive testimony against him. Therefore, tbe objection to its admission cannot be sustained. S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469; S. v. Casey, 212 N. C., 352, 193 S. E., 411; S. v. Ray, 212 N. C., 725, 194 S. E., 482; Rule of the Supreme Court, 221 N. C., 558. Likewise, tbe evidence having been generally admittеd, a contention of tbe State based thereon, given in tbe charge to tbе jury, without objection at tbe time, will not be held for error. S. v. King, 219 N. C., 667, 14 S. E. (2d), 803; S. v. Johnson, 219 N. C., 757, 14 S. E. (2d), 792; S. v. Bowser, 214 N. C., 249, 199 S. E., 31. Ordinarily tbe failure to object in apt time to a statement of contention by tbe court, constitutes wаiver of tbe right to object. S. v. Wells, 221 N. C., 144, 19 S. E. (2d), 243.
Exceptions eleven through fifty-six are also direсted to tbe charge of tbe court. But none of these exceptions are brought forward in appellant’s brief and argued or authorities cited in support thereof, as required by Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., 563. Hence, these exceptions will be treated as abandoned.
Tbe аppellant does argue in bis brief that tbe trial court failed to “state in a рlain and correct manner tbe evidence given in tbe case and deсlare and explain tbe law arising thereon,” as required by G. S., 1-180, but there is no excеption in tbe record based on such failure on tbe part of the court, tо comply with tbe statute. An argument unsupported by exception is as ineffeсtive as an exception without argument or citation of authority. Curlee v. Scales, 223 N. C., 788, 28 S. E. (2d), 576. An exception for failure to charge tbe jury as required by G. S., 1-180, must be taken in tbe same manner as any other exception to the charge and an assignment of errоr based thereon, “must particularize and point out specifically wherein tbe court failed to charge the law arising on the evidence.” S. v. Dilliard, 223 N. C., 446, 27 S. E. (2d), 85. Failure tо particularize and point out wherein tbe court failed to comply with thе statute will constitute such exception a mere broadside exceрtion, and it will not be considered, unless it is pointed out in some other exceрtion or exceptions to the charge wherein tbe court failed to сomply with the statute. S. v. Friddle, 223 N. C., 258, 25 S. E. (2d), 751, and S. v. Billiard, supra, and cases there cited. A careful consideration of tbe charge, however, discloses no prejudicial error.
Tbe remaining exceptions are formal and cannot be sustained.
In the trial below, we find
No error.