23 N.C. App. 458 | N.C. Ct. App. | 1974
Defendants bring forward numerous assignments of error, all of which apply to both defendants. Defendants first contend that the trial court erred in denying their motion for a continuance made at the start of their trial. The motion was based upon the absence of a defense witness, Jerry McMillan, even though a subpoena had been issued. A motion for a continuance is addressed to the sound discretion of the trial judge, whose ruling thereon is subject to review only in case of manifest abuse. State v. Penley, 6 N.C. App. 455, 170 S.E. 2d 632 (1969). Defendants have not shown, nor do we perceive a manifest abuse of discretion.
In their second assignment of error, defendants claim the trial court erred in allowing Carrigan’s in-court identification of defendants in that the identification was tainted by impermissibly suggestive photographs of defendants shown to Carrigan. We disagree. Voir dire examination revealed that Carrigan’s in-court identification was based upon what he saw the day he was robbed. Based upon competent evidence, the trial court made findings to this effect and concluded that Carrigan’s in-court identification was admissible. Findings of fact by the trial, judge and conclusions drawn therefrom on voir dire exami
Defendants’ third assignment of error challenges the admissibility of Carrigan’s testimony describing a brief conversation by the occupants of the car which Carrigan overheard while being confined in the car’s trunk. In their brief, defendants argue that, notwithstanding the harmless effect of this evidence, the prosecuting attorney and the State should be penalized, in the form of a reversal, for their improper solicitation of this testimony. We decline the offer. Assuming, without deciding, that the testimony was inadmissible, defendants have not shown us how it could have adversely affected the result in their case.
The fourth assignment of error is expressly abandoned.
In their fifth and seventh assignments of error, defendants complain that the trial court erred in sustaining objections to questions concerning the role of Jerry McMillan in this case. Except for one instance, the record fails to show what the excluded evidence would have been. The sustaining of an objection to a question directed to a witness will not be deemed prejudicial when the record fails to disclose what the answer would have been had the objection not been sustained. State v. Sasser, 21 N.C. App. 618, 205 S.E. 2d 565 (1974). On one occasion, the record does disclose what the answer would have been. However, the content of the answer does not indicate that Jerry McMillan participated in the crime nor that he had knowledge of defendants’ innocence. The excluded evidence only shows that McMillan had threatened defendants about implicating him in the crime. Evidence which tends to raise no more than an inference or conjecture of the guilt of a third party is inadmissible. State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937).
In their next assignment of error, defendants contend the trial court erred in allowing the district attorney to use a signed
“Q. When did he give it back to you?
A. I haven’t received it yet.
Q. Never got it back?
A. No.”
Defendant Martin was then questioned about a written statement which defendant Martin admitted having signed. The written statement indicated that on 22 September, two days later, defendant Martin did have his pistol. This evidence was competent to show that defendant had made prior statements inconsistent with his testimony at the trial. State v. Walker, 6 N.C. App. 740, 171 S.E. 2d 91 (1969) ; 1 Stansbury, N. C. Evidence, Brandis Revision, § 46.
Finally, defendants concede that their motion for nonsuit was properly overruled by the trial court. We find no prejudicial error in the trial.
No error.