No. 735SC491 | N.C. Ct. App. | Aug 8, 1973
Defendant assigns as error that the trial judge permitted the State to impeach its own witness. Immediately following the description by Ruby Beatrice Simmons of the manner in which defendant forced her into the shed, removed her clothes, and had sexual intercourse with her as she struggled with him, the examination by the Solicitor continued as follows:
“Q. Now, Miss Simmons, state whether or not at any time during your being in the shed with Mr. Grainger you ever gave consent to Mr. Grainger to have sexual intercourse with you?
Mr. Prickett: Objection.
Court: Well, Overruled. Let’s see what she says?
A. Yes.
Q. What was your answer ?
A. Yes.
Q. Did you or did — did you give consent to him?
A. No.
Mr. Prickett: I Object. She is a bound—
Court: Overruled.”
Defendant argues that the State is bound by the first answer given by the witness. It is obvious that the witness misunderstood the question and the trial judge was correct in permitting the question to be asked again. It is well established that a party may not impeach his own witness in either a civil or criminal trial. However, the trial court has discretionary power to permit a party to reexamine, or even cross-examine, his own witness who surprises him by the testimony, for the purpose of enabling the witness to understand the question and testify correctly. 7 Strong, N. C. Index 2d, Witness, § 4, p. 695. Defendant has shown no abuse of discretion. This assignment of error is overruled.
Defendant next assigns as error that the trial court failed “to permit the defense to cross-examine the State’s witness as
“Q. Now, has anyone else ever touched you before?
Mr. Stanley: Objection, Your Honor.
Court: Well, objection to that question is Sustained.
Q. Ruby, have you ever had your clothes off in front of any other man?
Mr. Stanley: Objection.
Court: Sustained.
Q. Had Donnie Reynolds ever taken your clothes off?
Mr. Stanley: Objection.
Court : Objection is Sustained.”
It is doubtful that any of the above questions required an answer that would reveal prior sexual activity. But, whether relevant or not, defendant later was allowed to ask Ruby about prior sexual activity. Her answer was “Before this thing occurred, I had never had relations with any other man.” This assignment of error is overruled.
Defendant next assigns as error that the trial judge permitted the jury to consider the lesser included offense of assault with intent to commit rape.
“The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156" court="N.C." date_filed="1954-11-24" href="https://app.midpage.ai/document/state-v-marshall-norman-hicks-1305373?utm_source=webapp" opinion_id="1305373">241 N.C. 156, 159, 84 S.E. 2d 545, 547. However, if an error favorable to defendant is committed, he is not prejudiced and has no grounds to complain. State v. Murry, 277 N.C. 197, 176 S.E. 2d 738. Nevertheless, in the present case defendant offered the recording of a prior interview of Ruby Beatrice Simmons from which there is a reasonable inference which would support a finding that there was no penetration. In view of this evidence it was proper to submit the lesser included offense of assault
No error.