State v. Tipton

8 N.C. App. 53 | N.C. Ct. App. | 1970

MORRIS, J.

Defendant’s brief contains no statement of facts as required by Rules 27% and 28 of the Rules of Practice in the Court of Appeals of. North Carolina, nor does defendant bring forward assignment of error No. 3 in her brief. We, therefore, deem it abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

By assignments of error Nos. 1, 2 and 4 defendant contends that the court erred in “allowing leading and/or speculative and/or prejudicial questions to be asked of interested witnesses.” Defendant excepted to the court’s permitting a witness, to testify that “I think she (defendant) came in around 12:30 or 1:00.” This exception is without merit. Even though the witness used the words “think” and “around”, the lack of definiteness and positiveness in her testimony could only affect her credibility, and of this the jury is the sole judge. State v. Ham, 224 N.C. 128, 29 S.E. 2d 449 (1944). Defendant’s other two assignments of error are bottomed on the court’s permitting leading questions. The permitting of leading questions is within the discretion of the trial judge, especially in cases requiring evidence of the type which arose in this case, and will not be reviewed on appeal in the absence of a showing of abuse of that discretion. State v. Pearson, 258 N.C. 188, 128 S.E. 2d 251 (1962), and cases there cited. Defendant has shown no prejudice nor abuse nor do we perceive any. Assignments of error Nos. 1, 2 and 4 are overruled.

By assignment of error No. 5 defendant asserts that the court committed reversible error in failing to add to his charge on presumption of innocence an instruction that such presumption remains with the defendant throughout the trial. It is not error to fail to charge on presumption of innocence. State v. Perry, 226 N.C. 530, 39 S.E. 2d 460 (1946). “The presumption of innocence is a subordinate feature of the cause and if the defendants desired an amplification of the charge in this respect, they should have so requested at the time.” State v. Perry; supra, 534. This assignment of error is not sustained.

Defendant contends by assignment of error No. 6 that it was error for the court to fail to define reasonable doubt. The case of Williams v. U. S., 271 F. 2d 703 (4th Cir. 1959), the only case cited in defendant’s brief, is not persuasive authority for her position in view of the long established rule in this State that the court is not required to define the term reasonable doubt in the absence of a request. See 3 Strong, N.C. Index 2d, Criminal Law, § 112, footnote 88 and 1969 supplement thereto. The record shows no request by defendant for such a definition.

No error.

PARKER and Vatjghn,' JJ., concur.