16 N.C. App. 266 | N.C. Ct. App. | 1972
Defendant, Larry Jones, assigns as error the court’s denial of his plea of “former jeopardy.” At the 7 July 1969 session of Superior Court held in Durham County, the defendants Larry Jones and John Holloway along with Phillip Jones were tried under separate bills of indictment charging them with the murder of William Worsley. At the first trial, defendant. Larry
Assignments of error two, three and four relate to the court’s denial of the defendants’ motion to consolidate their trial with that of Phillip Jones, and with the denial of their motions to continue and to use the transcript of the testimony of Phillip Jones from the previous trial.
Ostensibly, the defendants sought to have their case continued so they could obtain the presence of Phillip Jones as a witness; however, their motion to continue was not supported by affidavits setting out the reasons for the motion. Furthermore, their motion to use the transcript of testimony of Phillip Jones from a previous trial was not supported by affidavits setting out either the reasons therefor or what they had done to secure his presence as a witness. Indeed, in response to the judge’s inquiry as to what had been done to secure the presence of the witness, counsel for defendants stated that they had done nothing. Such motions are addressed to the discretion of the trial judge and his rulings thereon will not be upset on appeal absent a showing of such abuse of discretion as would deprive the defendants of a fair trial. State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968) ; State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520 (1948); State v. Walker, 6 N.C. App. 447, 170 S.E. 2d 627 (1969), cert. denied 277 N.C. 117 (1970); 29 Am. Jur. 2d Evidence § 755 (1967). Defendants
Defendants next assign as error that “the Court permitted the State to hand the Jury, for their own personal examination, seven (7) photographs of the deceased that had been used for the purpose of illustrating without further instructing the Jury that the photographs could only be used to illustrate the testimony of a witness.” This contention is without substance for it appears that only one photograph of the body of the deceased was exhibited to the jury. Furthermore, absent a timely request, the failure to give a limiting instruction is not prejudicial error. State v. Casper, 256 N.C. 99, 122 S.E. 2d 805 (1961), cert. denied 376 U.S. 927, 11 L.Ed. 2d 622, 84 S.Ct. 691 (1964) ; State v. Cade, 215 N.C. 393, 2 S.E. 2d 7 (1939).
Defendants assert that the trial court erred in failing to grant a mistrial after the solicitor asked a witness about a verdict at a previous trial. Any possible prejudice which might have resulted from the question was cured by the trial court’s prompt action in sustaining defendants’ objection to this question and in directing the jury to disregard the question and answer. The court did not err in denying the motion for mistrial.
Defendants next contend that the trial court erred in “permitting a police officer to testify on rebuttal from police notes typed by a third person some three months after the alleged homicide and to read from the police records alleging statements that the defendant had made.” The recorded past recollection of a witness may properly be read by that witness. Stansbury, N.C. Evidence 2d § 33 (1963). The fact that the report may not have been recorded until several months after the event lessens the weight that should be attributed to that statement, but does not render it incompetent. This assignment of error is overruled.
Defendants next challenge the trial court’s denial of their motions for judgments as of nonsuit. There was sufficient evidence to require submission of the case to the jury and to support the verdict.
All of the defendants’ assignments of error, including those based on exceptions to/the court’s instructions to the jury, have been carefully considered and found to be without merit.
No error.
