292 N.C. 255 | N.C. | 1977
Defendant first assigns as error the denial of his motion “to strike all testimony” of Police Officer C. W. Crawley concerning the pistol defendant threw down at the time of his arrest.
Officer Crawley testified that it appeared defendant had attempted to fire the gun. Objection to that statement was sustained after which the following testimony was elicited:
“Q. Mr. Crawley, can you testify whether that weapon is a center fire weapon or a rim fire.
A. A rim fire.
Q. And what do you mean by that?
A. When the hammer falls, it falls on" the rim of the cartridge or shell to explode or ignite it.
Mr. Shrader: I move to strike all testimony concerning the logistics [sic] of the gun.
The Court: Overruled.
Defendant’s Exception Number One
Q. And if you would look at one of the shells which you identified further earlier as having a marking on it, would you describe the location of that marking.
A. It is on the edge of the shell casing.
Q. Would that be indicative of a rim fired weapon or a center fire weapon.
A. A rim fire.”
Defendant contends that, absent a finding that the witness was an expert in the mechanics of firearms, the testimony of
While defendant’s motion is couched in obscure language, apparently he moved to strike all the testimony of Officer Crawley on the theory that a witness must be an expert in the mechanical operation of firearms before he is qualified to testify whether a particular weapon is center fire or rim fire. The record in this case reveals that Officer Crawley was not expressing an opinion but testifying from personal observation. He had already testified without objection that State’s Exhibit 3 was a rim fire weapon. Be that as it may, however, and assuming arguendo that defendant’s motion to strike should have been allowed, it is incumbent upon him to show “error positive and tangible, that has affected his rights substantially and not merely theoretically, and that a different result would likely have ensued.” State v. Cross, 284 N.C. 174, 200 S.E. 2d 27 (1973). Here, it is clear beyond a reasonable doubt that the alleged error to which this assignment is addressed resulted in no prejudice to defendant.
G.S. 14-87 (Cum. Supp. 1975), the statute under which defendant was charged, requires, among other things, that a robbery be accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Lee, 282 N.C. 566, 193 S.E. 2d 705 (1973) ; State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809 (1971). While the controverted testimony of Officer Crawley would permit the jury to find that the robbery was accomplished by the use or threatened use of a firearm using rim fired ammunition, other testimony in the record, admitted without objection or contradiction, points overwhelmingly to the use of firearms by the robbers. We see no reasonable possibility that the verdict of the jury would have been different had the challenged testimony been excluded.
Evidence elicited from the store employees reveals that defendant and his companion entered the ABC store and defendant, armed with a .22 caliber pistol, forced Ralph Ware to empty the contents of the cash drawer. Defendant then warned Ware that if he moved his head again Ware would be “blown
In light of all the evidence tending to establish the use or threatened use of a firearm, whereby the life of a person was endangered or threatened, any possible error in the admission of testimony concerning the type of gun used was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972) ; Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963); State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972) ; State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969). Defendant’s first assignment is overruled.
Defendant’s second assignment of error relates to a portion of the charge in which the trial judge stated the contentions of the parties. The portion challenged reads as follows: “Mr. Adams can identify the short man that was there and that short man is the defendant, Ronald Ravone Jones. ...” Defendant contends this brief summation of defendant’s identification ignores other aspects of the testimony of the witness Adams where he said, on further cross-examination: “All that I can remember was that the shorter of the two boys in the robbery had a moustache and that he was black. No, I cannot remember any other details of his facial appearance.”
Defendant concedes that the witness positively stated, on four separate occasions in his testimony, that he identified defendant as the shorter of the two robbers. He argues, however, that in light of the later qualifications in his testimony, it was incumbent upon the trial judge to incorporate those qualifications in the charge to the jury.
There is no merit in this assignment. An inadvertance in recapitulating the evidence and the contentions of the parties must be called to the attention of the court in time for correction before the jury retires. After verdict, the objection comes too late. State v. McAllister, 287 N.C. 178, 214 S.E. 2d 75 (1975) ; State v. Lampkins, 286 N.C. 497, 212 S.E. 2d 106
Prejudicial error not having been shown, the verdict and judgment must be upheld.
No error.
