8 N.C. App. 17 | N.C. Ct. App. | 1970
Both of the defendants are indigent and are represented on this appeal by their court-appointed attorneys. Separate briefs have been filed on behalf of each defendant. We will first discuss the assignments of error brought forward only by defendant Pharr. Assignments of Error Nos. 2, 3, 7, 8, 9, 10 and 12 ail relate to questions propounded by the court to witnesses. We have carefully examined each of these and find the assignments of error to be without merit. In each instance it is clear that the questions were designed to obtain a proper understanding of the testimony. It is well settled in this State that the trial judge can ask questions of a witness in order to obtain a proper understanding and clarification of the witness’ testimony. State v. Strickland, 254 N.C. 658, 119 S.E. 2d 781.
On cross-examination defendant’s counsel asked the witness Austin: “Now, what was the discussion you had with Mr. Painter at that time?” The court sustained the State’s objection. The record does not disclose what the reply of the witness would have been; consequently, we do not know whether or not the ruling was prejudicial to the defendant, nor does the record show the purpose for which the question was propounded. The burden is on the appellant to show prejudicial error. As a general rule, the exclusion of evidence cannot be reviewed on appeal when the record does not disclose what the excluded evidence would have been, so that the court can determine whether or not its exclusion was prejudicial. State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342; State v. Patton, 2 N.C. App. 605, 163 S.E. 2d 542. Assignments of Error Nos. 4 and 5 are overruled.
The witness Lockhart testified, “I saw Mr. Pharr and Mr. Dunbar over there at the house of Margaret Córrelos.” The solicitor then asked the following question: “Were you there at the Córrelos home and did Mr. Pharr and Mr. Dunbar come to that address or just how did you happen to get up with them?” Defendant Pharr’s objection to the question on the ground that it was leading was overruled. The witness replied, “Mr. Pharr stayed there, Mr. Robert didn’t.” Our courts have almost invariably held that the presiding judge has wide discretion in permitting or restricting leading questions. The question and answer elicited were clearly not prejudicial to the defendant. State v. Johnson, 272 N.C. 239, 158 S.E. 2d 95. Assignment of Error No. 6 is overruled.
On one occasion the court told defendant’s counsel, “Let’s don’t go over the same thing over and over. Once is enough.” Assignments of Error Nos. 14 and 15 based on defendant Pharr’s exception to this statement by the court are overruled. Although the
Both defendants bring forward Assignment of Error No. 25 which asserts that the court failed to comply with G.S. 1-180. Defendants contend that the court did not instruct the jury as to the weight and credibility of the testimony of the witness Lockhart. A party desiring further elaboration on a particular point, or of his contention, or a charge on a subordinate feature of the case must aptly tender his request for special instructions. 3 Strong, N.C. Index 2d, Criminal Law, § 113, p. 13. Instructions to scrutinize the testimony of an alleged accomplice are not required when, as here, no request therefor has been made. State v. Roux, 266 N.C. 555, 146 S.E. 2d 654. This assignment of error is overruled.
Defendant Pharr’s Assignments of Error Nos. 18 and 23 and defendant Dunbar’s Assignments of Error Nos. 18, 19, 20 and 21 involve alleged errors in the judge’s instructions to the jury. We have carefully examined the entire charge, with particular reference to the exceptions, and find that it adequately charges the law on every material aspect of the case arising on the evidence and applies the law fairly to the facts in evidence. All assignments of error to the charge are overruled.
The defendants were ably represented by counsel. The jury, -under application of settled principles of law, resolved the issues of fact against the defendants. In the entire trial we find no prejudicial error.
No error.
