34 N.C. App. 594 | N.C. Ct. App. | 1977
By this appeal, defendant brings forward two assignments of error. The first one is directed to the court’s excluding evidence concerning the date of arrest. It is obvious from the record that
“The general rule is that the defendant in a criminal case is not, for the purpose of showing his innocence, allowed to prove that he refused to take to flight before his arrest or to escape from jail after his arrest, even though offered the opportunity to do so, at least in the absence of any testimony that he had attempted to flee or escape.” 29 Am. Jur. 2d, 334, Evidence § 287. Refusal to flee or escape; voluntary surrender.
In State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903), defendant, at his second trial, sought to introduce testimony that since his incarceration, he had had numerous opportunities to escape but refused to do so. Justice Connor, writing for a unanimous Court, said:
“The exact question has been decided by this Court in S. v. Taylor, 61 N.C., 508, Battle, J., saying: ‘The argument in favor of the exception is that as the flight of an alleged criminal is admissible as evidence against him, his refusal to flee in the first instance and his declining to escape after having been admitted to jail ought to be admitted as evidence in his favor. The argument is plausible, but it would be permitting prisoners to make evidence for themselves by their subsequent acts.’ ”, p. 1136,
and upheld the trial court’s exclusion of the evidence. For the same reason, we overrule defendant’s assignment of error.
By his remaining assignment of error defendant contends that the court committed prejudicial error in denying his motion to set aside the verdict. He properly concedes that this motion is addressed to the court’s discretion but he urges that to let the verdict stand in this case would work an injustice. Defendant relies on Selph v. Selph, 267 N.C. 635, 148 S.E. 2d 574 (1966), for his position. We do not so interpret Chief Justice Sharp’s words. She said:
“The trial judge has the discretionary power to set aside a verdict when, in his opinion, it would work injustice to let it stand; and, if no question of law or legal inference is involved*597 in the motion, his action in so doing is not subject to review on appeal in the absence of a clear abuse of discretion.” (Citations omitted.) Selph v. Selph, at 637.
It is obvious that the trial court did not have the opinion that to let the verdict stand would result in injustice. No question of law or legal inference is involved in the motion. We are, therefore, obliged to determine whether the record reveals “a clear abuse of discretion”. There is none. After the jury had deliberated for an hour and twenty-five minutes, they returned to the courtroom and, through the foreman, asked if they could hear from the person driving the car with whom defendant got a ride to his sister’s house. The court quite properly told them that they would have to decide the case on the evidence presented. This was, according to the facts dictated into the record by the court, after the court, defense counsel, and the district attorney had agreed that this would be the only instruction to be given the jury in response to their inquiry. The jury returned to the jury room. After the jury had returned to the jury room, defendant requested that additional instructions be given the jury; i.e., that the State had the burden of proof. The court declined. No objection was made and no exception taken. The defendant moved to set aside the verdict on the grounds that the jury disregarded the court’s instructions as to the burden of proof. The charge of the court is not made a part of the record. We assume, therefore, that it contained no error and that the defendant was satisfied with the court’s instructions with respect to the burden of proof. In any event, it appears clear that the record is totally void of any words or actions on the part of the trial court which would amount to abuse of discretion.
In the trial of this case we find
No error.
