16 N.C. App. 235 | N.C. Ct. App. | 1972
The defendant contends the Court committed prejudicial error in failing to comply with the mandate of G.S. 1-180 by:
1. Not declaring and explaining the law arising on the evidence ;
2. Declaring and explaining law not arising on the evidence;
3. Failing to state the evidence to such extent as is necessary to apply the law thereto;
4. Commenting on the evidence;
5. Failing to define proximate cause.
We have carefully examined the Court’s instructions to the jury in the light of each exception noted in the record. The Court fairly, adequately and correctly declared and explained the law arising on the evidence. The Court carefully and correctly defined each element of the crimes of second degree murder and manslaughter. The Court carefully and correctly explained the law of self-defense and correctly applied it to the evidence in the case.
There is nothing in the record to support defendant’s contention that the Court commented on the evidence in violation of the provisions of G.S. 1-180.
Under the circumstances of this case there was no necessity that the Court define proximate cause. There was evidence tending to show that the defendant shot the deceased. On cross examination, defendant testified, “I don’t know how old Howard Lee Thomas was when I killed him” and “This pistol I shot him with I had in my right rear pocket.” There was evidence tending to show that deceased came to his death as a result of a bullet wound. There was no evidence or suggestion that anyone other than the defendant fired a gun or that the deceased came to his death as a result of any wound or injury other than that inflicted by the defendant. These assignments of error have no merit.
Defendant contends the Court committed prejudicial error by allowing the solicitor to read:
“ ... to the jury a paper writing purporting to be an admission of the defendant having therefore been excluded from the evidence by the Court, by improper questions getting before the jury by innuendo and insinuation evidence not otherwise admissible and other incidents of conduct calculated to unduly prejudice the jury.”
From the record before us it is not clear to what “paper writing” the defendant has reference. No paper writing purporting to be a confession was offered into evidence. With respect to the solicitor’s reading to the jury during his argument, the record is as follows:
“You heard the defendant himself on that stand when I cross-examined him, what he said, that he came off the steps — ‘I’m the one that did the shooting.’ ‘What happened?’ Capt. Stabler said. ‘I’m not talking until I talk with my lawyer.’
Objection. Sustained.
Court : Don’t consider that.
Mr. Zimmerman: Then he comes to the jail and gets in and tells this — ‘Howard kept beating on the door and Hester told him to leave; then I asked him to leave and he wasn’t going to.’ I asked him did he say that; he said No, he didn’t say that, he said a lot of other things, (reading resumed) T went back out on the porch again; she went out and led him off the porch to the truck — Hester, and he came back beating on the door again.’ He said he might have said that. Then (reading) — ‘My wife went*240 out and asked him to leave; then I went out again and told him to go on; he ran his right hand in his pocket and hit at me with his left hand’—
Objection Sustained.
Mr. Suddarth: The defendant tried to get this in evidence and never was permitted to.
Mr. Zimmerman: I cross-examined him on each and every word.
Mr. Suddarth : He denied it and the part he admitted is the only thing in evidence.
Mr. Zimmerman : (reading) I hit him with a chair—
COURT: Don’t argue any of the alleged part except the part admitted on the stand.
Mr. Zimmerman: (reading) T hit him with a chair; then he spun around. He still had his hand in his pocket and I shot him. Earlier tonight at William Rogers Mock’s trailer Howard Lee showed me his gun; it was a small pistol, and I didn’t know if it was loaded or not. I had been carrying my pistol all along.’
Objection Sustained.
Court: Don’t consider that, Members of the Jury.”
The defendant seems to contend that the solicitor read to the jury from a statement prepared by Captain Stabler from his conversation with the defendant as to the circumstances surrounding the shooting. The record discloses that the defendant, without objection on cross examination, testified to each statement apparently read to the jury by the solicitor. It seems equally clear that the solicitor may have been reading from his own notes prepared during the trial. In any event, we do not perceive how the defendant could have been prejudiced since the trial judge sustained the defendant’s several objections to the argument, told the solicitor not to argue anything “except the part admitted on the stand,” and cautioned the jury not to consider the argument to which objection had been sustained.
In support of his contention that the defendant was prejudiced in the minds of the jury by the improper conduct of the
“Wide latitude is given to counsel in argument. The judge hears the argument, knows the atmosphere of the trial and has the duty to keep the argument within proper bounds. His rulings will not be disturbed unless abuse of privilege is shown and the impropriety of counsel was gross and well calculated to prejudice a jury.” (citations omitted)
We have examined all of the questions, statements and comments complained of and find that the rulings of the trial judge were proper and that the alleged impropriety of the solicitor’s argument was not gross and calculated to prejudice the jury.
Defendant next contends the trial court committed prejudicial error “by abusing its discretion in not granting the defendant’s motion for a mistrial.”
Defendant premised his motion for mistrial on two allegedly improper questions propounded by the solicitor to defense witnesses. In each instance the trial judge sustained defendant’s objection to the question and instructed the jury to disregard the question asked by the solicitor. This prompt action of the trial judge cured any impropriety. In 2 N.C. Index 2d, Criminal Law, § 102 (1967), it is stated: “. . . an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial. It is only in extreme cases of abuse of the privilege of counsel, and when the trial court does not intervene or correct an impropriety, that a new trial may be allowed.”
The trial court has broad discretion in entertaining motions for mistrial. Absent a manifest abuse of discretion or rulings which are clearly erroneous, the rulings of the trial court will not be disturbed. State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968) ; O'Berry v. Perry, 266 N.C. 77, 145 S.E. 2d 321 (1965) ; Stone v. Baking Co., 257 N.C. 103, 125 S.E. 2d 363
Defendant assigns as error the denial of his timely motions for judgment as of nonsuit. There was ample evidence to require submission of this case to the jury and to support the verdict.
Defendant’s next assignment of error challenges the trial court’s allowing testimony, over defense objections, as to the condition of the pistol found on the body of the deceased. Any object which has a relevant connection with a case is admissible. Stansbury, North Carolina Evidence 265 § 118 (2d ed. 1968). There was evidence tending to show that the deceased had a pistol and that Officer Stabler found the pistol in the deceased’s pocket. This pistol was properly admitted into evidence as State’s exhibit #7. It was not prejudicial error for the Court to allow testimony as to the condition of the pistol when it was taken from deceased’s body.
The defendant has additional assignments of error which we have carefully considered and find to be without merit. We hold the defendant had a fair trial free from prejudicial error.
No error.
