State v. Brown , 272 N.C. 512 ( 1968 )

158 S.E.2d 354 (1968) 272 N.C. 512

STATE of North Carolina
v.
Wylie Eugene BROWN.

No. 272-R.

Supreme Court of North Carolina.

January 12, 1968.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Staff Attorney Jacobs for the State.

William L. Pender, Charlotte, for defendant appellant.

PER CURIAM.

The court permitted Officer Smith to testify over defendant's objection that the shirt Oglesby had exhibited to him on July 10, 1967, and which had been offered in evidence as State's Exhibit No. 1, was the same shirt Oglesby told him "on the morning of the 10th that the mother of the defendant told him belonged to the defendant." Defendant assigns as error the overruling of his objection and the admission of this testimony.

Defendant contends this testimony of Smith was elicited in response to a leading question. In respect of this contention, we find neither error nor prejudice.

The testimony of Smith that Oglesby had told him that Mrs. Brown had told Oglesby that the shirt in evidence was a shirt owned or worn by defendant was incompetent. However, as set forth in our preliminary statement, evidence to this effect was first elicited during the cross-examination of Oglesby and was received in evidence then and thereafter without objection. Moreover, Smith had testified, without objection, prior to the question to which objection was made, that Oglesby told him that Mrs. Brown had identified the shirt as "Wylie's shirt." Hence, the error in Smith's quoted testimony must be deemed harmless.

"The admission of testimony over objection is ordinarily harmless when testimony of the same import is theretofore or thereafter introduced without objection, or defendant elicits similar testimony on cross-examination, * * *" 3 Strong, N.C. Index 2d, Criminal Law § 169.

The critical issue of identity was for jury determination. An appraisal of the cold record suggests that such determination was fraught with difficulty. However, further factual investigation as to defendant's guilt is a matter within the sphere and competence of the Board of Paroles.

Each of defendant's remaining assignments of error has been considered. None discloses error of law deemed of such prejudicial nature as to justify a new trial or of such substance as to merit particular discussion.

No error.