State v. Judge

49 N.C. App. 290 | N.C. Ct. App. | 1980

ERWIN, Judge.

Defendant first contends that testimony elicited by the State from Marvin Lee concerning threats made by defendant against Lee and in the presence of Rogers was irrelevant and prejudicial.

The test of the relevancy of evidence “is whether it tends to shed any light on the subject of the inquiry or has as its only, effect the exciting of prejudice or sympathy.” State v. Braxton, 294 N.C. 446, 462, 242 S.E. 2d 769, 779 (1978). Evidence offered by the State, which tends to prove a relevant fact, “will not be excluded merely because it also shows defendant to have been guilty of an independent crime, [authorities omitted] Where evidence tends to prove a motive on the defendant’s part to commit the crime charged, it is admissible even though it discloses the commission of another offense by the defendant.” State v. Cherry, 298 N.C. 86, 109, 257 S.E. 2d 551, 565 (1979).

Lee testified, over objection, that defendant stated to Lee, and in the presence of Rogers, that “ T ain’t never liked you and you got Indian blood in you and I’m going to open you up and see some of it.’ ” Lee testified that at that point, Rogers intervened and told defendant that he was “ridiculous of starting a fuss.” We hold that the evidence complained of was relevant to indicate the relationship between defendant and Rogers that morning and a possible motive of the defendant in pursuing the quarrel approximately one hour to one and one-half hours later. This assignment of error is overruled.

Defendant assigned error to comments made by the trial court during the following exchange in the course of cross-examination of a State’s witness who was at the pool hall:

“Q. [By defense counsel] You know they serve liquor in that house?

A. I’ll take the Fifth Amendment on that.

Court: He’s not accusing you of serving it.

Mr. Jordan: If Your Honor please, I ask the Court —

Court: I won’t require him to answer because I don’t think — I just won’t. Go ahead to something else.

EXCEPTION NO. 18.”

Defendant argues that the trial court expressed an opinion on the strength of the evidence or the credibility of the witness to the prejudice of defendant.

“[A] remark by the court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial.” State v. Cox, 6 N.C. App. 18, 24, 169 S.E. 2d 134, 138 (1969). The probable effect of the comment upon the jury must be examined, considering the comment in the light of the circumstances under which it was made. Id.

We are of the opinion that the remark made by the trial judge amounted to no more than a ruling on the question, and it was not prejudicial to defendant. This assignment of error is overruled.

Defendant received a trial free from prejudicial error.

No error.

Judges Arnold and Hill concur.