190 S.E.2d 430 | N.C. Ct. App. | 1972
STATE of North Carolina
v.
Willie MITCHELL.
Court of Appeals of North Carolina.
*432 Atty. Gen. Robert Morgan by Asst. Atty. Gen. William F. O'Connell, for the State.
Giezentanner & Brock by Floyd D. Brock, Asheville, for defendant appellant.
PARKER, Judge.
During cross-examination of one of the eyewitnesses to the shooting, defense counsel asked the witness if it "would have been possible" for the victim to have had a knife in his hand without the witness seeing it. The court sustained the solicitor's objection to the question, to which action defense counsel excepted and now assigns error. We find this assignment of error without merit. There was no evidence whatsoever even tending to indicate that the victim had a knife or weapon of any type in his hand prior to the time he was shot. All the evidence was to the contrary. The record reveals that the trial judge did not unduly restrict defense counsel's cross-examination of the State's witnesses. On the contrary, this cross-examination was both searching and thorough, so that the jury was fully apprised both of the events which transpired up to the time of the shooting and of the witnesses' opportunities to see, or to fail to see, the matters concerning which they testified. Moreover, the record does not show what the witness's answer would have been had he been permitted to answer, and the exclusion of testimony cannot be held prejudicial when the record fails to show what the excluded testimony would have been. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416; State v. Poolos, 241 N.C. 382, 85 S.E.2d 342.
Appellant also assigns error to the actions of the trial judge in excluding testimony concerning statements which defendant volunteered to the police at the time he surrendered on the morning following the shooting. In this there was no error. State v. Chapman, 221 N.C. 157, 19 S.E.2d 250. "It is settled by repeated adjudications that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestae." State v. McNair, 93 N.C. 628. "What a party says exculpatory of himself after the offense was committed, and not part of the res gestae, is not evidence for him. Otherwise, he might make evidence for himself." State v. Stubbs, 108 N.C. 774, 13 S.E. 90. In the present case the statements of defendant were volunteered to the police some eight hours after the shooting and cannot be considered part of the res gestae. Defendant did not testify, and no contention is made that the statements were competent for purposes of corroboration.
Finally, appellant contends the trial judge erred in not permitting him to introduce in evidence as exhibits certain articles of clothing which defendant gave to the police on the morning following the shooting. The proffered exhibits were properly excluded. There was no showing that the clothing in question was the same clothing worn by defendant at the time of the shooting or that, if it was, that it was in the same condition when he delivered it to the police as it had been at the time of the shooting. The exhibits were not relevant to any issue in the case.
It would appear that defendant, without taking the stand and thereby subjecting himself to cross-examination, was attempting to inject into the case some basis for contending that he acted in self-defense. If so, his attempt failed. There was no showing that the small cut which was on defendant's back when he surrendered to *433 the police on the morning following the shooting was inflicted upon him by his victim at the time of the shooting. On the contrary, two eyewitnesses testified that the victim held no weapon and that defendant was the aggressor when the fatal shot was fired.
In the trial and judgment appealed from we find
No error.
MALLARD, C. J., and MORRIS, J., concur.