1 N.C. App. 590 | N.C. Ct. App. | 1968
Defendant’s assignments of error numbered 1, 2, and 3 relate to questions about his consumption of beer which were asked the defendant on cross examination by the solicitor.
One of the charges against the defendant was driving while under the influence of intoxicating liquor. The State’s evidence as to this tended to show that the defendant was driving an automobile on a public highway while under the influence of intoxicating liquor. The defendant testified on direct examination that he had consumed one can of beer. The questions asked did not assume any facts not in evidence. By becoming a witness, the defendant waived his privilege against self-incrimination, and it was proper to ask him questions concerning the offense charged as well as questions designed to discredit him as a witness. Stansbury, N. C. Evidence 2d, § 66, p. 115.
Assignment of error number 4 relates to a question asked defendant’s witness on cross examination concerning the amount of alcoholic beverages he had consumed on the occasion under investigation. This assignment is overruled. The specific question asked was, “You were kinda stoned on the occasion weren’t you?” The witness replied, “What do you mean stoned?” The solicitor then asked, “You had consumed a sufficient quantity of alcoholic beverages to where your mental and physical faculties were numb hadn’t you?” To this the witness replied, “No, not that much I don’t think. I had taken a drink of whiskey before I left home.” The word “stoned” was apparently not understood by the witness. However, in Webster’s Third New International Dictionary (1968) the word “stoned” is the past tense of “stone,” and one of the meanings of the verb “stone” is “to make numb or insensible (as from drinks or narcotics).”
The sobriety of this witness Lail was a proper subject of inquiry on cross examination. The State’s evidence tended to show that Mr. Lail was with the defendant at the time the defendant was arrested, and that Mr. Lail was also arrested for public drunkenness. The question was not impertinent, insulting, or prejudicial as defendant contends.
Defendant also contends that the Court committed error in denying his motion for a mistrial. The record reveals that the following occurred with respect to the defendant’s motion for a mistrial:
“Mb. Gullee: Your Honor, I would like to move for a mistrial on the grounds that one of the jurors misrepresented himself in the answer to one of my questions — more specifically, when I asked the members of the jury whether or not any of them were associated at this time with law enforcement or had been associated with law enforcement previously, one juror raised his hand and said he had been a police officer (Mr.*592 Floyd C. Martin). It has now come to my attention that Mr. Thomas Rankin has been connected with the Domestic Relations Court as a probation officer.
Thu Court: Motion is denied.
Me. Guller: Your Honor, may I call Mr. Rankin to the stand?
The Court: For the purpose of your motion, motion is denied.
Sol. Whitesides: I was listening to the questions he asked and the State would offer evidence that the question was whether or not anyone was now employed as a law enforcement officer or in any capacity of law enforcement and not whether they were employed at any time previously.
The Court: The Court overrules the motion, and for the purpose of the record, the statement was that the juror was employed at one time as a probation officer with one of the lower courts; that was the statement.
Mr. Guller: Yes, sir. Exception for the defendant.”
It is not clear whether the question propounded by defendant’s counsel related to the juror’s present or past connections with “law enforcement.” However, having served as a probation officer with a domestic relations court would not of itself make a juror incompetent.
We are of the opinion that the defendant’s motion for a mistrial was addressed to the discretion of the trial judge. No abuse of discretion is asserted or shown. State v. Sheffield, 206 N.C. 374, 174 S.E. 105.
In the trial we find
No error.