State v. . Oxendine

ScheNck, J. The first group _of assignments of error set out in appellant’s brief is presented under the first question posed in his brief, namely: “Did the Court err in admission of testimony offered by the State?” The first of these assignments relates to the testimony of the prosecuting witness Warriax that “there were approximately 150 shot in' his head.” The defendant objected to the testimony and moved to strike it from the record. The court overruled the objection as well as the motion to strike, and defendant excepted. The defendant bases his exception upon the theory that the witness had formerly testified that “he knew how many (shot) he had been told went in there” (his head), and that therefore the testimony was hearsay. It does not appear in the record that the witness made the statement that he knew approximately how many shot went into his own head immediately following his statement that he knew how many shot he had been told went in his'head, and there is nothing in the record that supports the assumption that the former statement was based on the latter statement; the former statement could have been as readily based on his suffering or his sense of feeling. It was clearly competent for the witness to testify to approxi-. mately how many shot went into his own head — this for the purpose of showing the seriousness of the injury, if nothing else. This assignment of error is not sustained. *828 Tbe second assignment of error relates to tbe testimony of a witness for tbe State to .tbe effect tbat a gun found in tbe defendant’s borne smelled as if tbe powder therein bad been recently fired. It would seem tbat tbis testimony would be competent on tbe question as to whether tbe defendant fired tbe gun, but however tbis may be, any value which tbe exception might originally have bad was waived by testimony of a number of witnesses to tbe same effect in tbe record without objection. 8. v. Hudson, 218 N. C., 219 (230), 10 S. E. (2d), 730.. Tbis assignment of error is not sustained. Tbe third assignment of error relates to tbe testimony of a State’s witness in explaining on redirect examination bis testimony given on cross-examination. Tbe witness was interrogated on cross-examination and bad admitted tbat be bad been convicted of an assault, and tbe testimony assailed by tbis exception was tbe explanation given by tbe witness on redirect examination of bis testimony on cross-examination. Such testimony was competent. 8. v. Orrell, 75 N. 0., 317. Tbe fourth assignment of error relates to tbe testimony of tbe prosecuting witness to tbe effect tbat be bad shot a brother-in-law of tbe defendant on tbe night of tbe assault. In view of tbe fact tbat it was in evidence tbat tbe defendant bad said be was going to kill tbe prosecuting witness because be (witness) bad shot bis (defendant’s) best friend, tbe testimony was merely an explanation of previous testimony, and was also clearly admissible to establish motive. 8. v. Hudson, supra; 8. v. Lefevers, 216 N. C., 494, 5 S. E. (2d), 55. Tbe fifth assignment of error relates to tbe admission, over objection, of testimony of tbe prosecuting witness to tbe effect tbat be bad arrested tbe defendant for being drunk. Tbis assignment is untenable as the testimony tends to establish a motive for tbe shooting of tbe witness by tbe defendant, which, though not necessary to be shown, was competent to be shown. 8. v. Lefevers, supra. Tbe sixth assignment of error set out in tbe plaintiff’s brief,is to tbe refusal of tbe court to allow tbe defendant’s motion for a judgment of nonsuit duly lodged under Gr. S., 15-173, when tbe State bad introduced its evidence and rested its case. Tbe essential elements of tbe offense with which tbe defendant was charged are (1) tbat tbe defendant, Oxen-dine, assaulted tbe prosecuting witness, "Warriax, (2) tbat tbe assault was committed with a deadly weapon, (3) tbat tbe assault was committed with intent to kill tbe prosecuting witness, (4) tbat serious injury was inflicted upon tbe prosecuting witness by tbe assault, and (5) tbat tbe assault did not result in tbe death of tbe prosecuting witness. Taking tbe evidence in tbe light most favorable to tbe State it discloses a motive for tbe shooting of tbe prosecuting witness, tbe motive being revenge for tbe fact tbat tbe prosecuting witness, in tbe performance of bis duties as *829 a policeman, bad shot the brother-in-law and friend of the defendant; threats on the part of the defendant to shoot the prosecuting witness; the defendant attempted to acquire a shotgun shell, that the defendant was 100 or 150 yards from the scene of the shooting, going in the direction of where the shooting took place; that the prosecuting witness was shot with a shotgun; that soon after the shooting a shotgun was found in the home of the defendant which had recently been fired; and, finally, the defendant made a statement to the officers that he had shot the prosecuting witness. A mere statement of the evidence is in itself a sufficient answer to the exception, and renders citation of authority unnecessary. The defendant offered no evidence. There appears in the record the following: “During the argument of the Solicitor, the defendant objected to the Solicitor’s argument with reference to the 12 gauge shell. The Solicitor stated that the defendant had a size shell that didn’t fit his gun. The shell he had wasn’t the kind that he wanted to shoot this man with. The Solicitor said a 16 shell would not have the force behind it that a 12 gauge would have had. The Solicitor said a 12 gauge shell would have carried his head on with it. The court declined to interfere with the Solicitor’s argument and overruled defendant’s objection thereto, and the defendant excepted. Exception No. 7.” A witness for the State testified that the defendant a short time before „ the shooting asked him if he had a 12 gauge shell, and at the time the defendant had a shell of some sort in his hand. The prosecuting witness testified that if he had been shot with a 12 gauge shell it would have blown the top of his head off. "With this evidence before the court, it is not perceived how the Solicitor extended the latitude of his prerogative. in making the argument assailed by the assignment of error. The Solicitor may comment on all the evidence, and draw reasonable inferences therefrom, and may also make application of the law thereto. This assignment is untenable. "With a few omissions Exceptions No, 8 to No. 38, both inclusive, are disposed of in the appellant’s brief with the following comment: “The foregoing exceptions present the same contentions as are set forth in the second question and are aimed at the action of the court below in submitting the case to the jury and the same argument applies to these as applies to the exception to the nonsuit.” Having disposed of the motion for judgment of nonsuit, further comment on these exceptions would be superfluous. Exception No. 14 is directed specifically to that portion of the judge’s charge in which it is said that intention is an act or emotion of the mind, seldom, if ever, capable of direct or positive proof, which is to be arrived at by just and reasonable deductions from the facts and acts proven. *830 This charge would seem to be sustained by S. v. Smith, 211 N. 0., 93, 189 S. E., 115, a case wherein the defendant was tried for burglary in the first degree, an essential element of which crime is the intent as in the instant case. Certainly there is no prejudicial error in such charge, and the assignment of error is therefore untenable. There are many assignments of error to the charge, some of which, if considered alone, might be subject to criticism, but when the charge is considered as a whole in the same connected way in which it was given it presents the law fairly and correctly, and, therefore, affords no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous. 8. v. Exum, 138 N. C., 599, 50 S. E., 283; 8. v. Smith, supra. No error.