145 S.E.2d 346 | N.C. | 1965
STATE
v.
Charles HILL.
Supreme Court of North Carolina.
*348 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Staff Atty. Charles M. Hensey for the State.
Boyan & Wilson, High Point, for defendant appellant.
BOBBITT, Justice.
Appellant contends the court erred (1) by refusing to nonsuit, (2) by failing to allow appellant to cross-examine the State's witnesses, and (3) by the court's failure to charge the jury as to the law of self-defense.
There was plenary evidence that appellant intentionally hit Hiatt with a brick. Appellant's contention that there was no assault because Hiatt was not put "in fear" is without merit. State v. Allen, 245 N.C. 185, 95 S.E.2d 526, relates to an entirely different factual situation. The court properly overruled appellant's motion for judgment as of nonsuit.
Appellant assigned as error "(t)he Court's failure to allow defendant the right of Cross-Examination as appears of record and as shown by defendant's Exceptions Nos. 1 (R p 17), 2 (R p 17), 3 (R p 21), 4 (R p 21), 5 (R p 22), 7 (R p 27), 8 (R p 27), 9 (R p 28) and 10 (R p 30)." Appellant's exceptions are insufficient to support the quoted assignment of error. As typical of all, we refer to the record references relating to Exceptions Nos. 1 and 2. The solicitor completed his direct examination of Hiatt. Thereupon, Louis J. Fisher, Esq., Attorney for Linthicum, cross-examined Hiatt at considerable length. At the conclusion of said cross-examination, there appears, without explanation, the following: "DEFENDANT'S EXCEPTION NO. 1." Thereupon the solicitor conducted a redirect examination of Hiatt. At the conclusion thereof, there appears, without explanation, the following: DEFENDANT'S EXCEPTION NO. 2." The record does not indicate whether appellant requested or was offered or was denied the right of cross-examination in respect of any witness.
It does not appear that appellant was prejudiced by his failure to cross-examine witnesses. As indicated, Linthicum was represented by counsel; and the full cross-examination of the State's witnesses conducted by Linthicum's counsel was of equal benefit to all defendants. Neither appellant nor John Hill was represented by counsel. Appellant was not an indigent. Evidence offered by Linthicum under direct examination by Linthicum's counsel inured to the benefit of appellant. Moreover, appellant, while he did not testify, offered evidence, to wit, the testimony of John Hill and of Danny Hill, his sons, and conducted personally the direct examination of these witnesses. While there was much conflict in the testimony, it appears clearly all witnesses were fully examined and cross-examined and that all features of the case were fully developed.
Finally, appellant assigns as error "(t)he Court's failure to charge the jury as to what constitutes the Law of Self-Defense as shown by defendant's Exception No. 14." No exception designated "defendant's Exception No. 14" appears in the record. Nor does the record show that appellant excepted in any manner to the court's failure to charge the jury "as to what constitutes the Law of Self-Defense." Appellant does not advise us, either by his assignment of error or by his brief, as to what instruction relating to the law of self-defense he considers appropriate in relation to the facts in evidence.
Moreover, appellant fails to show he was prejudiced by the court's charge. The court charged as follows: "Now, the State's evidence tends to show that Charles Hill hit the prosecuting witness, Mr. Hiatt, on this occasion *349 with a brick, and that John Hill hit the prosecuting witness with a wooden stick, and that Danny Linthicum hit the prosecuting witness with a wooden stick." As to appellant, it is clear that the theory of the State's case was that appellant hit Hiatt with a brick after Hiatt had been assaulted by Danny Hill, John Hill and Linthicum and when Hiatt was leaving the scene of such assaults in a disabled condition. While appellant did not testify, the evidence offered in behalf of Linthicum and in behalf of appellant was to the effect appellant did not hit Hiatt with a brick or otherwise assault him. There was no evidence appellant acted in self-defense "such as would require the court, without special prayer, to explain the law applicable to his right to do so." State v. Jackson, 226 N.C. 760, 40 S.E.2d 417; State v. Pettiford, 239 N.C. 301, 79 S.E.2d 517.
Appellant having failed to show prejudicial error, the verdict and judgment will not be disturbed.
No error.