19 N.C. App. 60 | N.C. Ct. App. | 1973
The sole question presented on appeal is whether the trial court erred in allowing State’s witness Dysart to testify as to the conversation between himself and defendant Kelly’s brother in which Dysart expressed his intention to go to Myrtle Beach.
As to defendant Kelly, there was sufficient evidence to show that he was in hearing distance of his brother and Dysart at the time the statement was made, and the evidence was clearly admissible against him. As to defendant McKinney, there was no evidence whatsoever of his presence at the scene and it was error for the evidence to be admitted without a limiting-instruction.
“In such cases, as a general rule, the incompetency of the evidence for one purpose will not affect its admissibility for other and proper purposes. The evidence will be admitted, and the party against whom it is offered will be entitled, on request, to have the jury instructed to consider it only for the purposes for which it is competent.” 1 Stans-bury’s North Carolina Evidence, Brandis Revision, § 79, pp. 240-241. (Emphasis added.)
Defense counsel interposed a timely objection and moved to strike the testimony but failed to request a limiting instruction. Yet it was held in State v. Franklin, 248 N.C. 695, 104 S.E. 2d 837 (1958), that where evidence is admissible against one party and not for any purpose against another, a general objection by the latter is sufficient.
No limiting instruction was given by the trial court following defense counsel’s objection. However, before formally charging the jury the trial judge did instruct as follows:
“Members of the Jury, during the course of the evidence, the Court permitted Mr. Dysart to testify as to conversations had between him and one Alton Kelly at his home, at which time Arnold Kelly was present. The Court instructs you, Members of the Jury, if you find that such conversations occurred and you find it to be true beyond a reasonable doubt that you may consider it in your deliberations only as against the defendant, Arnold Kelly and you may not at any point in your deliberation and may not consider any conversation in the presence of Arnold Kelly as against the defendant, Carson Lee McKinney, there*63 being absolutely no evidence he at any time was present at any time any such conversation occurred, if you find, in fact, it did occur.”
This instruction was sufficient to cure the error. His prior ruling was “subsequently and specifically reversed and the jurors instructed to disabuse their minds of any and all prejudicial impressions lodged by the incompetent evidence.” State v. Franklin, supra, p. 699. In our opinion defendants received a fair trial, free from prejudicial error.
No error.
