No. 7321SC760 | N.C. Ct. App. | Dec 27, 1973
Defendant first assigns as error a question propounded by the district attorney to defendant while testifying in her own behalf. The district attorney was inquiring about a co-defendant who had been living with defendant when he asked,
Defendant contends that the court at least should have instructed the jury to disregard the question, but, more properly, should have declared a mistrial. We find no rule by which the judge is required to tell the jury to disregard a question, certainly in the absence of a request to so instruct the jury and there was no request here. A motion for mistrial in cases less than capital is addressed to the trial judge’s sound discretion and his rulings thereon are not reviewable on appeal in the absence of a showing of a gross abuse of discretion. State v. Daye, 281 N.C. 592" court="N.C." date_filed="1972-06-16" href="https://app.midpage.ai/document/state-v-daye-1224914?utm_source=webapp" opinion_id="1224914">281 N.C. 592, 189 S.E. 2d 481 (1972); State v. Battle, 267 N.C. 513" court="N.C." date_filed="1966-06-16" href="https://app.midpage.ai/document/state-v-battle-1316680?utm_source=webapp" opinion_id="1316680">267 N.C. 513, 148 S.E. 2d 599 (1966); State v. Williams, 7 N.C. App. 51" court="N.C. Ct. App." date_filed="1969-12-17" href="https://app.midpage.ai/document/state-v-williams-1290413?utm_source=webapp" opinion_id="1290413">7 N.C. App. 51, 171 S.E. 2d 39 (1969). Defendant here has failed to show any abuse of discretion on the part of the court which would warrant a new trial and this assignment is overruled.
On her second assignment of error defendant contends that since the amount of heroin actually found was so minute it did not amount to a violation of G.S. 90-95 (a) (3) proscribing the use of such substances. We reject the contention. This section provides: “ . . . [I]t shall be unlawful for any person: To possess a controlled substance included in any schedule of this Article.” For purposes of this section, no limitation is set of the amount of the controlled substance which must be possessed in order to come within its prohibition. The offense is completed by the possession for any purpose other than those specifically authorized exceptions to the article. This assignment is also overruled.
Defendant’s final assignment of error is also without merit. Her contention on this assignment is that the court failed to adequately instruct the jury as to what constituted possession or constructive possession of the controlled substance heroin. A careful review of the charge shows it to be in accord with the instruction approved by this court in State v. Romes, 14 N.C. App. 602" court="N.C. Ct. App." date_filed="1972-05-24" href="https://app.midpage.ai/document/state-v-romes-1330914?utm_source=webapp" opinion_id="1330914">14 N.C. App. 602, 188 S.E. 2d 591, cert. denied, 281 N.C. 627" court="N.C." date_filed="1972-08-01" href="https://app.midpage.ai/document/state-v-wright-6702221?utm_source=webapp" opinion_id="6702221">281 N.C. 627.
No error.