State v. . Steadman , 200 N.C. 768 ( 1931 )

Frank Ballew, the prosecuting witness for the State, testified as to the robbery from his person and the identity of the appealing defendants. Oscar Pate also testified for the State as to the identity of Mass. Atkins, whom he had known for three or four years, in the following language: "I took one of them to be Mass. Atkins. . . . After I saw Mass. Atkins and the other man in the woods, . . . the man I thought was Mass. Atkins. . . . I can swear to the best of my knowledge it was him." Oscar Pate also testified to certain other facts relative to the identity of Mass. Atkins, the car he was driving, something in his hand looked like a pistol, and another person with him, and described the appearance of the other person — this near the scene of the crime and shortly after the commission. The State then introduced an affidavit of Oscar Pate setting forth the above facts and a definite statement as to it being Mass. Atkins. "I swear it was Mass. Atkins." The defendants objected, the objection was overruled and defendants excepted and assigned error.

In regard to this definite statement, Oscar Pate testified: "That is the affidavit I signed, all but one statement. I mean there is a statement in there that I did not make. Mr. Leonard says that I swore positively that I saw Mass. Atkins, and I told Mr. Leonard that it was Mass. Atkins to the best of my knowledge."

The court: "This affidavit has been offered in evidence by the State. It is not admitted as any evidence at all of any fact that is in that affidavit, but only admitted for your consideration in corroboration of what the witness has already testified to, if it does so corroborate."

There were other facts in the affidavit that did corroborate Pate. The fact that on the trial he did not go as far as to the identity of Mass. Atkins as in the affidavit and the court's instruction to the jury in regard to the affidavit, if error, we cannot hold as prejudicial. He reneged in regard to the positive statement in the affidavit, and his testimony on the trial was less damaging to Mass. Atkins. Then again, he said that the positive statement was incorrect. All this was favorable to Mass. Atkins. The facts here are different from S. v. Melvin, 194 N.C. 394. See Clay v. Connor, 198 N.C. 200.

The charge of the court below is not subject to criticism for that the court did not define "Satisfied beyond a reasonable doubt," and that the defendant is presumed to be innocent. No prayer for instruction was requested. S. v. Boswell, 194 N.C. 260. We can see no error in the charge of the court below in regard to the law applicable to good character, nor that applicable to an alibi. No prayer for instruction was requested as to the evidence in regard to defendant's character as in S. v. Morse,171 N.C. 777. The court below fully set forth the facts and contentions in the charge as to the alibi set up by defendants. S. v. Melton,187 N.C. 481.

In Bank v. Rochamora, 193 N.C. at p. 8, quoting numerous authorities, the law is thus stated: "Where the instruction is proper so far as it goes, a party desiring a more specific instruction must request it." This applies to subordinate elaboration, but not substantive, material and essential features of the charge. C. S., 564; McCall v. Lumber Co., 196 N.C. at p. 602; Moss v. Brown, 199 N.C. at p. 192.

In the present case the matters complained of by defendants, except the alibi which was fully explained in the charge, were not substantive, material or essential features of the charge, but subordinate elaboration, and prayers for instruction should have been requested.

The question of the identity of defendants was one for the jury to decide; there was ample evidence on the record of an alibi, but this was not believed by the jury. In law we find

No error.