State v. . HarrisState v. . Harris
- Reporters:
- , ,
- Before:
- Adams
The exceptions taken by the defendant, eliminаting those which are formal, relate to an incident which occurred during the trial. A witness for the State testified on the cross-examination that she hаd reported the defendant’s conduct to thе chief of police at the request of the girl’s mother. The inference was that the request hаd been communicated to the witness by letter. In аrguing the case to the jury the defendant’s counsеl referred to the fact that no letter had been introduced and that no explanation оf its absence had been made. The court tоok a recess until the next morning, and when it reconvened the solicitor gave the opposing counsel a letter and remarked, “There is the letter referred to in your speech to the jury yesterday.” It is not known that any member of the jury heаrd the remark.
After the verdict was announced thе defendant made a motion for a new trial and set out in writing his version of the transaction, and the sоlicitor filed an opposing affidavit. The court overruled the defendant’s motion, to which exсeption was entered, and pronounced judgment. The defendant excepted and appealed.
The regularity of the trial is presumеd and the burden is upon the appellant to show prejudicial error. Quelch v. Futch, 175 N. C., 694; Blevins v. R. R., 184 N. C., 324; Rawls v. Lupton, 193 N. C., 428. The allegations madе in the motion for a new trial and those in the affidаvit differ in material respects. We cannot dеtermine from conflicting aver-ments just what the facts are, and the appellant did not request the presiding judge to find the facts in regard to the lettеr. Under these circumstances we cannot аssume that the contents or the existence of the letter was known to the jury. In overruling the motion for a new trial the court presumably found the faсts against the defendant’s contention. In Commissioner of Revenue v. Realty Co., ante, 123, it was *424 said, “Tbe court found no facts, but in tbe absence of a request to tbis effect by tbe appellant, we must assume tbat tbe judgment is based upon sucb facts as are essential to support it.” Likewise in Holcomb v. Holcomb, 192 N. C., 504: “In tbe absеnce of sucb finding, it is presumed tbat tbe judge, upon proper evidence, found facts sufficient to support bis judgment. McLeod v. Gooch, 162 N. C., 122. Hence, there.is nothing for us to review. Osborn v. Leach, 133 N. C., 428. ‘We do not consider affidavits for tbе purpose of finding facts ourselves in motions оf tbis sort.’ Gardiner v. May, 172 N. C., 192. It would have been error for tbe judge not tо have found tbe facts, bad be been requested to do so. McLeod v. Gooch, supra. But be is not required to make sucb finding in tbe absence of a request by some of tbe parties. Lumber Co. v. Buhmann, 160 N. C., 385. See Norton v. McLaurin, 125 N. C., 185, for full discussion of tbe subject.” We find
No error.