At thе close of the evidence defendant moved for judgment of nonsuit. G.S. 15-173. The motion was denied and defendant excepted. Defendant contends that this was error and urges reversal of the ruling on two grounds.
Defendant assеrts that he was dazed and in a state of shock by reason of the wreck and the State’s evidence that he was intoxicated should be considered nothing more than suspicion or conjecture.
A lay witness testified оn direct examination that defendant was “under the influence” of some intoxicants. On cross-examination he stated that “there were a number of things that could have caused the defendant to be unsteady on his feеt.” An officer who assisted defendant into the jail stated that, in his opinion, defendant “was under the influence of alcohol of some kind.” Under cross-examination he testified that “he did not know whether the condition of the dеfendant was caused by injuries received in the accident or by possible intoxication.”
On the other hand, a lay witness testified unqualifiedly “that in his opinion the defendant was under the influence of intoxicating beverage.” The arresting officer stated on both direct andi cross-examination that defendant’s condition was caused by intoxication and not injuries. He testified further that defendant said he was not hurt and did not want to be taken to a doctor.
In
State v. Hough,
*43 In the instant ease there is no evidence that the defendant was injured. He told the officer he was not. It is true that two of the witnesses testified in a manner similar to those in the Hough case. Two others testified in effect that defendant was under the influence of intoxicants and his condition was not caused by injuries.
When the State’s evidence is conflicting —• some tending to incriminate and some to exculpate the defendant — it is sufficient to withstand a motion for nonsuit and must be submitted to the jury.
State v. Horner,
Defendant further contеnds that his arrest was unlawful and the case against him should have been nonsuited for this reason. It is true the record tends to show that the alleged .offense was not committed in the presence of the arresting officer, that defendant was arrested without a warrant having been issued and that the warrant was procured in the afternoon following his arrest. G.S. 15-41. He asserts that he thereby “lost an opportunity to gather evidence for his defensе and seek medical attention.”
It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or indictment.
State v. Helms,
If a warrant is regular and valid on its face, an objection thereto, should there be grounds therefor, must be by motion to quash. And if .the motion is not made before plea of not guilty is entered, it is addressed to the discretion of the trial court and the ruling thereon is not reviewable on appeal.
State v. Ballenger,
A motion for nonsuit presents only the question of the sufficiency of the evidence to carry the case to the jury.
State v. Nunley,
We observe, parenthetically, that there is no evidence to support the contention of defendant that he lost an opportunity to gather evidence for his defense and to seek medical attention. The officer offered ,to take him to a physican but he stated that he was not hurt and did not want to see a doctor. Furthermore, the record discloses that he was informed of the charge against him. There is nothing to indicate that he was denied bail or was not permitted to communicate with counsel and friends. G.S. 15-47.
Appellant relies on
State v. Mobley,
Appellant makes a further contention that there was error in the admission of testimony which entitles him to a new trial.
The court, оver the objection of defendant, permitted witnesses to testify with respect to the injuries sustained by the little girl who was struck by defendant’s automobile, substantially as follows:
Paul L. Fletcher: She seemed to be hurt. It looked like she had been hit with a car. She looked like she was “broke up.” Her chin was bleeding and her aim was broken. She was lying at the foot of the tree. He saw that her arm was broken but did not look at her legs. He saw her again about a month ago, in the hospital. He doesn’t know when she got out of the hospital.
Theodore T. .Shuford: He saw her at the scene. “She was a-laying under the door. . . . And gasoline started pouring out of the car, and *45 I run and/ got a piece of pasteboard — I didn’t want to move her — and I just slid her over on this piece of pasteboard.” In his opinion she was nine or ten years old. He went to see her .in the hospital eight or ten different times. Shе got out of the hospital about two weeks ago, .but he couldn’t say definitely.
During the charge of the court, at the request of defendant’s counsel, the jury was instructed as follows:
“Ladies and Gentlemen, you will not consider in any aspect the fact that there was an injury to another person growing out of the car wreck. The only —only matter that you are to determine in this action is whether at the time and place in question the defеndant was operating his automobile while under the influence of intoxicating beverages.”
Defendant’s position is that the evidence of the child’s injuries and her hospitalization is irrelevant to the issues in the case and calculated to prejudice his cause and create sympathy for the State’s case.
If the only effect of evidence is to excite prejudice or sympathy, its admission may be ground for a new trial. But relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it. North Carolina Law of Evidence: Stansbury, sеc. 80, p. 143.
State v. Hudson,
Irrelevant evidence, tending to prejudice the opponent and create sympathy for the party offering it, has been held in some cases to be cause for a new trial notwithstanding the instructions оf the court to disregard it.
State v. Page,
In this case the testimony that the child was injured, that the injuries were serious and that she was hospitalized, was clearly relevant as bearing upon the manner of operation of the automobile and the lack of control by defendant. “The State could not be deprived of the benefit of evidence which was relevant and material because it might also have a tendency to prejudice thе defendant.”
State v. Cox,
We are inclined to the view that the evidence was given in more detail than the State’s case required and that the recounting of the visits to the hospital was in the twilight of relevancy. We do not apрrove the fulsomeness of the testimony. Yet, in view of the court’s instruction, given at defendant’s request, it is our opinion that error was averted/ and a new trial is not warranted.
“The power of the Court to withdraw incompetеnt evidence and
*46
to instruct the jury not to consider it has long been recognized in this State. ... In
McAllister v. McAllister,
In State v. Strickland, supra, the Court says:
“In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the seriоus character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial cоurts have freely exercised the privilege, which is not only a matter of custom but almost •a matter of necessity in the supervision of a lengthy trial. Ordinarily where 'the evidence is withdrawn no error is committed. (Citing cases.)”
Altogether there are eighteen assignments of error. We have carefully considered each of them. Appellant has failedi to show prejudicial error.
Taylor Co. v. Highway Commission,
No error.