State v. Mayfield

28 N.C. App. 304 | N.C. Ct. App. | 1976

MORRIS, Judge.

On appeal defendant first contends that the court erred in allowing Detective Burns to testify that the gun found in the car would fire, because the witness was not an expert. “To be an expert the witness need not be a specialist or have a license from an examining board or have had experience with the exact type of subject matter under investigation, nor need he be engaged in any particular profession or other calling. It is enough that, through study or experience, or both, he has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject.” 1 Stansbury, N. C. Evidence (Brandis Rev.), § 133, at 429. Here the witness testified that he was a first sergeant in the Infantry for 20 years and had examined pistols thousands of times. While the court did not expressly find the witness to be an expert, he did allow him to give his opinion. By admitting the testimony, the court presumably found him to be an expert. State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735 (1972). The evidence was sufficient to support a finding of expertise. This assignment of error is overruled.

Toward the close of his jury argument, the solicitor stated:

“Ladies and gentlemen, you know that we have been having a great many of these type robberies of convenience stores here in our county, and we’ve got to do something about it to put a stop to it.”

Defendant objected, and the court sustained the objection and instructed the jury not to consider the remark, that this case was to be decided on the evidence heard by them about this particular case and not what happened at some other time. Conceding that the solicitor’s .remark was improper, nevertheless any error was cured by the court’s prompt instruction to the jury to disregard it followed by an instruction that they were to decide this case only on the evidence in this case and not to consider what might have happened at some other time and place. The manner of conducting the argument of counsel must be left largely to the discretion of the trial judge.

“ ‘It is only in extreme cases of the abuse of the privilege of counsel, and when this is not checked by the court, and the jury is not properly cautioned, this Court can intervene and grant a new trial.’ ” (Citation omitted.) State v. Barefoot, 241 N.C. 650, 657, 86 S.E. 2d 424 (1955).

The two remaining assignments of error are directed to the charge of the court to the jury. The purported exceptions do not point out the particular portions of the charge to which defendant objects, nor do the assignments of error indicate what defendant contends the court should have charged. Suffice it to say, our examination of the court’s instructions do not reveal prejudicial error.

No error.

Judges Brock and Britt concur.