20 N.C. App. 575 | N.C. Ct. App. | 1974
Appellants assign error to denial of their motions for continuance and to consolidation of the cases for trial. They contend they were entitled to a continuance because shortly prior to their arraignment the solicitor called defendant Spinks before the court on another matter and, in the presence of the panel from which the jury was to be selected, the following colloquy occurred :
Solicitor: “Your Honor, this matter is brought over from last week. The defendant moved to remand for compliance with the judgment in the lower court, which is a monetary compliance.”
“Are you ready to comply right now, Mr. Spinks?”
Defendant Spinks: “No, sir.”
Solicitor: “Mr. Bell represents you?”
“(Mr. Bell is called into the courtroom.)”
“Mr. Bell: Yes, Mr. Solicitor?”
Solicitor: “Mr. Spinks remanded last week. He was given until today to comply.”
“Mr. Bell: If your Honor please, he says he is not in a position to comply.”
“The Court : Then the motion is denied.”
Appellants, noting that defendant Spinks neither testified nor placed his character in issue at the upcoming trial, argue that this exchange branded Spinks as a previously convicted criminal in the eyes of the panel from which the jury was subsequently selected, thereby at once prematurely introducing inadmissible evidence against him and denying all defendants their right to be tried before an impartial tribunal. We disagree.
The purportedly prejudicial dialogue, if the jury panel paid any attention to it at all, was no more than a brief and
Appellants next assign as reversible error the action of the trial judge in asking a question of the State’s witness, Ronald Coleman. In this connection the judge did not ask, as appellants’ counsel states the question in their brief, whether the witness had authorized any of the defendants “to break into” his building. The judge merely asked: “Did you authorize either Gerry Anthony Coble, Reginald Garner, Wiley Spinks to enter your building?” The judge was careful to use the neutral phrase, “to enter,” rather than the criminally pejorative expression, “to break in.” While G.S. 1-180 prohibits the judge from expressing an opinion as to what has or has not been proven by the testimony of a witness, it is not improper, and is sometimes necessary, for the judge to ask questions of a witness in order to get the truth before the jury. State v. Colson, 274 N.C. 295, 163 S.E. 2d 376. Here, neither by repeated questioning nor by the phrasing of the limited question asked did the judge convey any impression of judicial leaning to the jury. No prejudicial error resulted.
Finally, appellants contend it was error to allow in evidence State’s Exhibit 5, a test tube containing certain small red fibers which were found on a stereo tape cabinet in the premises which had been broken into, and State’s Exhibit 6, a pair of red fabric gloves found in defendant Spinks’s automobile. An SBI agent testified that he found the fibers and the gloves during the course of his investigation on the day after the break
The evidence of defendants’ guilt was overwhelming. The record establishes that they received a fair trial free from prejudicial error.
No error.