State v. Ross ( 1969 )

169 S.E.2d 875 (1969) 275 N.C. 550

STATE of North Carolina
v.
Daniel ROSS.

No. 18.

Supreme Court of North Carolina.

October 16, 1969.

Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

Liles & Merriman, Raleigh, by William W. Merriman, III, Raleigh, for defendant.

HIGGINS, Justice.

In his brief, the defendant discusses ten exceptive assignments, eight of which involve objections to the solicitor's cross examination of the defendant, who testified as a witness in his own defense. The cross examination covered nine pages of the record. Under the solicitor's questions, the defendant admitted he had been convicted on a charge of assault on a female with a deadly weapon. He testified he was placed on probation and ordered to pay damages. He contended the shooting was an accident. He was convicted of larceny when he was a minor. He admitted he had been indicted for rape but was acquitted. Perhaps some of the solicitor's questions were objectionable. However, they involved collateral matters. The defendant's negative answers were conclusive and rendered the questions harmless. State v. King, 224 N.C. 329, 30 S.E.2d 230; Strong's N.C.Index, 2d Ed., Witnesses, Sec. 8, Vol. 7, p. 701, et seq.

Unquestionably in a trial for homicide only the survivor can testify. The prosecuting officer has the right, and it is his duty, to cross examine a defendant who testifies in his own defense. A well directed cross examination may disclose fallacies, if any, in the defendant's testimony and thus aid the jury in its search for the truth. A cross examination, especially where there are no eye witnesses, should be searching, but at all times it should be fair. The trial judge hears all witnesses and observes their demeanor as they testify. He knows the background of the case and is thus in a favorable position to control the scope of the cross examination. The appellate court reviews a cold record. For this reason, the trial court, because of its favored position, should have wide discretion in the control of the trial. Its rulings should not be disturbed except when prejudicial error is disclosed. State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195; State v. Stone, 226 N.C. 97, 36 S.E.2d 704; State v. Wray, 217 N.C. 167, 7 S.E.2d 468; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Davidson, 67 N.C. 119; State v. Patterson, 24 N.C. 346; Wigmore on Evidence, 3d Ed., 495. The careful and painstaking judge who tried this case did not commit prejudicial error in his rulings on defendant's objections interposed during the cross examination.

The two bullets which the State introduced in evidence over defendant's objection were properly identified and therefore admissible in evidence. Dr. Pate, the Pathologist who performed the autopsy, testified he removed two bullets from Mrs. Ross' body and marked them for identification. He testified one of these bullets pierced the heart and caused death. His identification before the court and jury at the trial made them admissible. "It is permissible to identify something taken from a human body by direct testimony of a witness that to his personal knowledge it is the thing in question." 21 A.L.R.2d 1219; State v. Stroud, 254 N.C. 765, 119 S.E.2d 907; State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4.

In addition to the objection to the cross examination of the defendant and the introduction of the bullets in evidence, the defendant contends the court committed error in failing to charge the jury that it might render a verdict of involuntary manslaughter. The court charged the jury that under the evidence it might render one of these verdicts: (1) guilty of murder in the first degree; (2) guilty of murder in the first degree with recommendation that the punishment be imprisonment for life in the State's prison; (3) guilty of murder in the second degree; (4) guilty of manslaughter; (5) not guilty. The court charged fully and correctly on the burden and intensity of the proof required to support each of the permissible verdicts of guilty; and that the failure of the State to carry the burden required a verdict of not guilty. The court charged fully and correctly on the defendant's right to defend himself and to repel felonious assault.

The State's evidence revealed the defendant fired 4 or 5 shots at his wife who was unarmed. After the first series of shots, he stepped outside the hall, reloaded his pistol, returned and fired what perhaps was the fatal shot. The evidence was sufficient to support a conviction of murder in the first degree. The jury, as it had the right to do, fixed the punishment at life imprisonment.

While the defendant did not point out and assign as error any particular or designated portion of the charge as required by appellate rules, we have examined the charge and conclude it is in accordance with legal requirements and is unobjectionable. The evidence neither required nor permitted the court to charge on involuntary manslaughter.

No error.