State v. MitchellState v. Mitchell
- Reporters:
- , ,
- Before:
- Campbell
The record sets out: “Evidence Submitted Under Rule 19 (d)(2).”
Rule 19(d) of this Court is as follows:
“(d) Evidence — How Stated. The evidence in record on apрeal shall be in one of the two following methods:
(1) [This method provides for setting out the evidence in record on appeal in narrative form.]
(2) As an alternative to the above method (as a part of the record on appeal but not to be reproduced), the appellant shall cause the complete stenographic transcript of the evidence in the trial tribunal, as agreed to by the oрposite party or as settled by the trial tribunal as the case may be, to be filed with thе clerk of this Court and then the appellant in an appendix (emphasis added) tо his brief shall set forth in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the questions raised on appeal, what he sаys the testimony of such witness tends to establish with citation to the page of the stenogrаphic transcript in support thereof. The opposite party in case of disagreement as to any portion of the appendix in appellant’s brief mаy set forth in an appendix to his brief in succinct language what he says the testimony of a witness establishes with citation to the page of the stenographic transcript in suрport thereof.”
In the instant case, there was no appendix attached tо the brief and this Court will, therefore, ex mero motu, dismiss the appeal.
Nevertheless, we have made a voyage of discovery through the entire record and considered each of the eighty-three еxceptions taken by the defendant, and we find no merit in any of them.
The defendant madе numerous written requests for special instructions and took thirty-one exceptions tо the failure of the trial court to give instructions as requested. We have examined each of the requested instructions and find that where applicable and suppоrted by evidence, the court did give in substance each of said instructions. “It is a well established rule with us that if a request is made for a specific instruction as to the rule of scrutiny in the event of an accomplice testifying for the prosecution, which is ccr- *531 rect in itself and supported by evidence, the trial judge, while not required to parrot thе instructions ‘or to become a mere judicial phonograph for recording the exact and identical words of counsel/ must charge the jury in substantial conformity to thе prayer.” State v. Bailey, 254 N.C. 380, 386, 119 S.E. 2d 165.
In the instant case the defendant in apt time requested the trial court to charge the jury:
“(1) The testimony of an accomplice or co-conspirаtor must be weighed with great care and be scrutinized closely, carefully and cautiоusly. This testimony, which is subject to great suspicion, must be viewed with distrust and acted on only after duе and careful deliberation.
(2) The testimony of an accomplice or co-conspirator is testimony from a tainted source.
,(3) In determining the weight and consideration of the testimony of an accomplice or co-conspirator, you must consider whether there has been any promise to him or indication of favorable treatment for him or actual benefit conferred, promised or indicated by thе circumstances of the case.”
To the refusal of the trial court to give those requested instructions, the defendant took an exception.
The court actually charged the jury in the following words:
“Now, when you considеr the evidence of an accomplice, the Court instructs you that you should scrutinize it with care and caution, and after giving it careful scrutiny and caution, if you then deem that the evidence of the accomplice is worthy of belief, you would give that tеstimony the same weight and credibility as you would any other witness you found to be worthy of beliеf.”
We think this instruction complied with the requirements of law and that it was not error for the trial court to use this language and not the specific language requested by the defendаnt. State v. Smith, 267 N.C. 659, 148 S.E. 2d 573. In fact, it would have been error to give the number three requested instruction, for there was no evidence to support it.
We find that the defendant had a fair trial, free of any prejudicial error and that the charge of the trial court was adequate and sufficient.
No error.
Britt and Morris, JJ., concur.