13 N.C. App. 492 | N.C. Ct. App. | 1972
Defendant contends it was error for the court to permit Deputy Sheriff Tom Moore to state that he observed “scuffle marks” at the alleged scene of the rape. “An observer may testify to common appearances, facts and conditions in language which is descriptive of facts observed so as to enable one not an eyewitness to form an accurate judgment in regard thereto.” State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968). Although the words “scuffle marks” are in the nature of a conclusion, it was competent as a shorthand statement of the facts observed. State v. Nichols, 268 N.C. 152, 150 S.E. 2d 21 (1966). This assignment of error has no merit.
The defendant next contends that the court erred by not allowing Deputy Sheriff Moore to answer on cross-examination the following question: “Didn’t the defendant, when you had him and Bessie Brown together, state to you and to Bessie Brown that he paid her $4.00 to have relations with her?” We think the objection to the question was properly sustained for it clearly solicited a self-serving declaration allegedly made by defendant. State v. Patton, 5 N.C. App. 164, 167 S.E. 2d 821 (1969); State v. Chapman, 221 N.C. 157, 19 S.E. 2d 250 (1942).
The defendant’s contention that the court committed prejudicial error by not instructing the jury that it could find the defendant guilty of assault with a deadly weapon or an assault on a female is without merit. There is evidence tending
Where the uncontradicted evidence tends to show that the defendant committed the crime charged in the bill of indictment, the trial judge does not commit prejudicial error when he fails to instruct the jury that it can convict the defendant of a lesser offense of that charged in the bill of indictment. State v. Murry, 277 N.C. 197, 176 S.E. 2d 738 (1970) ; State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732 (1970) ; State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969); State v. Jones, 249 N.C. 134, 105 S.E. 2d 513 (1958) ; State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954).
In the present case the uncontradicted evidence tends to show that the defendant committed the crime of rape. Any error committed by the trial judge in instructing the jury that it could find the defendant guilty of an asault with intent to commit rape was prejudicial to the State, and not to the defendant. State v. Fletcher, 264 N.C. 482, 141 S.E. 2d 873 (1965).
We hold that the defendant had a fair trial free from prejudicial error.
No error.
