State v. Mumford

252 N.C. 227 | N.C. | 1960

PER CuRiam.

During cross-examination of a defense witness by the Solicitor, counsel for defendant objected “to the Solicitor smiling and laughing when cross-examining the witness.” Thereupon the trial judge reproved: “Look sour, Mr. Solicitor.” Defendant insists that the conduct of the Solicitor and the admonition of the court interjected such levity as to “totally discredit and impeach the witness.”

A careful reading of the record in context fails to disclose what occasioned the mirth and pleasantry complained of. The content of the testimony gives no clue. “The burden is on the appellant not only to show error, but to show prejudicial error amounting to the denial of some substantial right.” Taylor Co. v. Highway Commission, 250 N. C. 533, 539, 109 S.E. 2d 243. The record fails to show that the statement of the trial judge tended to cast doubt upon the testimony of the witness or to impeach his credibility.

Defendant excepted to the charge of the court with reference to a prior conviction of defendant on a similar charge. During the course of the trial defendant, in open court, admitted a prior conviction. After such judicial admission, the court had the right to assume that it was true and to peremptorily instruct the jury to so consider it. Miller v. Mateer, 172 N.C. 401, 406, 90 S.E. 435.

The State’s evidience was sufficient to take the case to the jury. The charge is free of prejudicial error. In the conduct of the trial we find nothing that justifies a new trial.

No error.