State v. . Hooks

Seawell, J. This appeal brings up for review exceptions taken on the trial to the admission of evidence, the refusal to nonsuit the case on defendant’s demurrer to the evidence, the remarks made by the court in the course of the trial, and the validity of certain instructions in the judge’s charge. The motion to nonsuit was properly denied. Some of the exceptions have been abandoned and are not brought forward in the brief, and certain others have not been considered of sufficient merit to demand discussion, although they have been carefully examined. Those exceptions upon which the appellant most seriously insists have been carefully noted and discussion will be directed to them. Considerable attention is given in appellant’s brief to the admission of the testimony of Calhoun and White to the effect that the prosecutrix had previously, shortly after the occurrence, stated to them that a colored man had broken into the house; and that she had used certain expressions in identifying the defendant before them which it is argued were too vague for identification. The evidence was confined to corroboration of Mrs. Bouldin’s testimony on the trial. The gist of the objections made in this respect is that Mrs. Bouldin’s testimony as to the main fact of the assault had not been challenged and, therefore, corroborative evidence was not admissible in its support. *695 There are two answers to this objection: First, if the defendant makes no question as to the commission of the crime hut merely depends upon a want of identification of himself as the perpetrator, it is not apparent how he could be prejudiced as to corroboration of the occurrence; and, second, the statements of these two witnesses are so interwoven with the question of identification- — -which the appellant does challenge — as to repel any objection to its admission. Moreover the aid of corroboratory evidence is not as narrowly restricted as appellant suggests. Mrs. Bouldin was subjected to a searching cross-examination which, of course, it was the duty of defense counsel to make, and it was calculated to raise the question of her credibility, whether directly or inferentially we need not inquire, and corroboration was not offensive to the suggested rule. S. v. Parish, 79 N. C., 610; S. v. Rowe, 98 N. C., 629, 4 S. E., 506; S. v. Maultsby, 130 N. C., 664, 41 S. E., 97; S. v. Spencer, 176 N. C., 709, 97 S. E., 155; S. v. Gore, 207 N. C., 618, 178 S. E., 209. Also see S. v. Brabham, 108 N. C., 793, 13 S. E., 217; S. v. Bethea, 186 N. C., 22, 118 S. E., 800; S. v. Brodie, 190 N. C., 554, 130 S. E., 205; S. v. Scoggins, 225 N. C., 71, 33 S. E. (2d), 473; S. v Walker, 226 N. C., 458, 38 S. E. (2d), 531. In S. v. Littered, 227 N. C., 527, 43 S. E. (2d), 84, the Court said: “. . . Her (prosecutrix) testimony was challenged and its credibility put at issue by the pleas of not guilty and by extended cross-examination. Hence the testimony of her mother that prosecutrix did not return home that night and she, the witness, so reported to the officers and the radio station was competent in support of her testimony . . .” Exceptions are made to the mention of these matters in the judge’s charge in the statement of the'State’s contentions; and to this the same reasoning applies. On the evidence of Garner, who was admitted by the court to testify as an expert in -the science of fingerprinting, the judge remarked: “The Court will allow the introduction of the finger-print as found on the frame of the screen of the home of Mrs. Bouldin and also the fingerprints of defendant for the purpose of identification.” The appellant contends that this constitutes an expression of opinion to the jury (in violation of G. S., 1-180), that the pictures were actually made at the Bouldin house and that the fingerprints with which they were compared were taken from the defendant. In reply to this the State points out that the remarks of the judge, reasonably considered, were intended only to identify exhibits which were admitted. Expressions comparable in factual similarity, and made in similar situations have not been held by the Court to constitute preju *696 dicial error. S. v. Cash, 219 N. C., 818, 820, 15 S. E. (2d), 277; S. v. Cureton, 215 N. C., 778, 790, 3 S. E. (2d), 343; S. v. Fain, 216 N. C., 157, 158, 4 S. E. (2d), 319; S. v. Bullins, 226 N. C., 142, 144, 36 S. E. (2d), 915. “In State v. Cureton, supra, this Court approved the following question put by the Court to a witness: ‘When did he (defendant) shoot him (deceased) the last time?’” “In State v. Cash, 219 N. C., 818, 820, this Court approved the following remarks made by the judge to counsel for defendant in answer to his argument directed to the competency of certain evidence: ‘I am against you on that.’ This Court held that this remark ‘amounted to no more than a ruling upon the evidence.’ ” “In State v. Fain, 216 N. C., 157, 158, this Court approved the following comment of the Court upon the defendant’s confession as evidence: ‘which the court has held to be competent in this case because it appears that the confession was taken without hope of reward or without any extortion or fear, and that it was fairly taken after the prisoner had been duly warned of his rights.’ In approving this comment, the Court said: ‘This did not constitute an expression of opinion, such as is prohibited by C. S., 654, for the judge said no more than that the confession had been duly admitted in evidence, and he gave his reasons for admitting it.’ ” A further objection is made to the introduction in evidence of a cap found shortly after the occurrence in the living room of the prosecutrix and identified as that of defendant and to the reference to this evidence in the statement of the contention of the parties in the judge’s charge. The hat in question appears to have been picked up by Garner in the living room of the Bouldin house where the prosecutrix testified she was assaulted, and it was identified by the defendant’s mother-in-law as being defendant’s cap. This witness further stated that when he went out of the house in which they both lived that night he had the cap on and when he returned he did not have it. There was an inference from the evidence that when the officers arrived and took him in custody some while after the occurrence he did not have the hat. We do not find that the objection has any merit. In stating the contentions of the State the court observed in reference to the fingerprint evidence: “The State says and contends that this defendant is the man that committed the crime upon Mrs. Bouldin; that in his attempt to get out or into the house, that he pushed the screen of one of the win *697 dows open, (and that fingerprints oii the frame of the screen were taken by a man who is admitted to be an expert.)” The appellant points out that the defense did not admit this witness tó be an expert and that the form in which the contention is stated is prejudicial. This exception, as several others noted above, is to a matter occurring in the array of the evidence and the statement of the contentions and comes under the general rule that to avail himself of the exception the defendant must have called the matter to the attention of the court at the time. S. v. Dawson, ante, 85, 89; S. v. Warren, 227 N. C., 380, 42 S. E. (2d), 350; S. v. Thompson, 227 N. C., 19, 40 S. E. (2d), 620. Not only was this not done, hut an opportunity was directly given to the defendant by the court to make the correction had he wished to do so and he did not avail himself of it. ~We fully realize that we are dealing with a capital case, but the excep-tive matter is not of such a character as to take it out of this rule, and the exception cannot be sustained. The Court is unable to find sufficient reason to disturb the verdict. On the record we find No error.