16 N.C. App. 702 | N.C. Ct. App. | 1972
Defendant assigns as error the form of a hypothetical question asked by the solicitor of the State’s expert witness, Dr. Henry Singletary. The question reads as follows:
“Q. Doctor, the question that I presented to you hypothetically and which has been brought out in testimony in this case is that the subject, assuming hypothetically that the subject is seated on his front porch, and assume further that the subject having the rifle and shooting the rifle sat at an angle to that subject on the front porch standing on the street — porch is elevated. Can you tell me, sir, on the basis of your testimony, can you tell me, sir, on the basis of the impact whether or not that is probably within reasonable certainty the direction from which the bullet came and whether or not probably that is the manner in which the damage to his elbow occurred.”
We agree with the defendant that this hypothetical question was ineptly framed in that it omitted any reference to whether the jury “should find from the evidence” or “find the facts to be from the evidence.” Dempster v. Fite, 203 N.C. 697,
Defendant assigned as error the admission in evidence, over objection, of Wilmington City Ordinance 15-120, prohibiting persons from riding bicycles upon the sidewalks of the City of Wilmington. The defendant contended that some of the difficulties between him and the deceased arose when the deceased accused his, the defendant’s, children of riding bicycles on the sidewalk in front of deceased’s store. This assignment of error is overruled.
Defendant assigns as error the court’s denial of the defendant’s motion for a jury view of the scene of the homicide at the close of the State’s evidence. Whether or not a jury view should be granted is discretionary with the trial court and will be reviewed on appeal only for an abuse of that discretion. State v. Payne, 280 N.C. 150, 185 S.E. 2d 116 (1971) ; State v. Ross, 273 N.C. 498, 160 S.E. 2d 465 (1968) ; 7 Strong, N. C. Index 2d, Trial, § 13. We hold that the trial court did not abuse its discretion in denying the defendant’s motion. This assignment of error is overruled.
Defendant assigns as error the failure of the trial judge to declare a mistrial on defendant’s motion therefor, after defendant instead of answering a question asked him by his counsel, made, among others, the following unsolicited statement:
“I want a new trial. This is not going right. You can take me up there and lock me up there in jail. I am not going to testify for things.”
Whether or not the trial court shall grant a mistrial for the “necessity of doing justice” on account of the misconduct of the defendant is within its sound discretion and will not be reviewed upon appeal except for gross abuse. State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966) ; State v. Hines, 266 N.C. 1, 145
Defendant has directed eight assignments of error to the charge of the court to the jury. We have considered each and every one of these assignments of error but find none prejudicial to the defendant’s cause. We hold that the court’s instructions, when viewed as a whole, were substantially correct and without prejudicial error. These assignments of error are overruled.
In the trial we find no prejudicial error.
No error.
