State v. Shaffner

VAUGHN, Judge. Defendant makes several assignments of error which he contends require either a dismissal or a new trial. We do not agree. During cross-examination right after defendant said the inn had been closed since 31 December 1978, the following took place: Q. And as a matter of fact, didn’t Sheriff Gentry speak to you about the sale of alcoholic beverages there? Mr. Brewer: Objection. Court: Overruled. [92] Q. Didn’t he speak to you about that? A. He spoke to me — that was in the early part of the year, too. A. In 1978? A. No, ’79. The Sheriff and Mr. Harrison Dickson, the ABC officer in this area, came by to see me. Sheriff Gentry told me that he had complaints of me selling minors alcohol and I had Coca-Cola boys there working on the ice maker at the time that Mr. Gentry came in, the best I can recall. As far as I know, Sheriff Gentry did not advise me that he would be sending someone out to my establishment if I didn’t stop this sale. Other than the Sheriff, there was some fellows there who were working for the Coca-Cola Bottling Company. Defendant argues that in the foregoing the court improperly allowed “evidence of other offenses to be presented to the jury over the defendant’s objection.” Even if we assume that the question to which defendant objected was not asked in order to impeach defendant’s testimony that the inn had been closed since 31 December 1978 or was otherwise improper, defendant has waived any right to complain on appeal. The objection we have set out was the only one made. The damaging part of the testimony came in response to subsequent questions. The evidence came in without a single objection or objection to a specified line of questioning. No motion to strike was ever made. The benefit of defendant’s general objection was, consequently, lost when substantially the same evidence was thereafter admitted. Power Co. v. Winebarger, 300 N.C. 57, 265 S.E. 2d 227 (1980); State v. Owens, 277 N.C. 697, 178 S.E. 2d 442 (1971). Defendant’s second contention is that his conviction may not be sustained because the evidence was insufficient as a matter of law. Viewing all the evidence in a light most favorable to the State, we find that substantial evidence was presented which supported a reasonable inference of guilt sufficient to send the case to the jury. State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979). Essentially the evidence in this case consisted of the testimony of just two witnesses, Freeman and defendant. Freeman testified for the State to facts which, if believed, [93] established a violation of G.S. 18A-3. Freeman was served two mixed drinks of Canadian Mist and coke at the Moonlight Inn on 10 February 1979 for $1.50 each. Defendant owned this establishment and was behind the bar when the drinks were ordered and served. The club provided the liquor for the drinks, and defendant sold an unopened pint of Canadian Mist for $5.50. Freeman drank the drinks and testified that in his opinion they contained intoxicants. The State produced the bottle of liquor at trial. Clearly, this evidence was sufficient as a matter of law to sustain a conviction for the unauthorized sale of intoxicating liquor. The jury, as it was free to do, simply chose not to believe defendant’s testimony negating the possibility of any violation. Finally, defendant contends that the trial judge expressed an impermissible opinion regarding defendant’s guilt by only instructing the jury that defendant was an interested witness without mentioning the interest of prosecution witness Freeman. We do not agree. First, Freeman was no longer employed as a deputy sheriff at the time of this trial. Thus, defendant’s reliance on the following cases in his brief is misplaced. State v. Love, 229 N.C. 99, 47 S.E. 2d 712 (1948); State v. Boynton, 155 N.C. 456, 71 S.E. 341 (1911). Freeman was not a paid detective when he testified and could not have been improperly influenced by any hope of advancement or desire to please his employer. Second, the possible interest or bias of Freeman was a subordinate feature of the case and was not a subject upon which the trial judge was required to instruct. State v. Sealey, 41 N.C. App. 175, 254 S.E. 2d 238 (1979). In addition, We find little support in case law for the proposition that the trial court is required to charge that a police officer or any other witness is an interested witness as a matter of law. ... However, the court, though it charges that defendant is an interested witness, is not required to find that any other witness is per se an interested witness. State v. Richardson, 36 N.C. App. 373, 375-76, 243 S.E. 2d 918, 920 (1978). Thus, no instruction on Freeman’s interest or credibility was required unless defendant made a timely request for it. State v. Taylor, 236 N.C. 130, 71 S.E. 2d 924 (1952); State v. Tise, [94] 39 N.C. App. 495, 250 S.E. 2d 674, review denied, 297 N.C. 180, 254 S.E. 2d 36 (1979). Defendant admits that “no request for special instructions was tendered to the Court in the present matter.” In the absence of such a request, the trial court properly instructed the jury. No error. Judges Martin (Robert M.) and Webb concur.