State v. Mitchell , 1 N.C. App. 528 ( 1968 )

162 S.E.2d 94 (1968) 1 N.C. App. 528

STATE of North Carolina
v.
Robert Lee MITCHELL.

No. 68SC176.

Court of Appeals of North Carolina.

July 10, 1968.

T. W. Bruton, Atty. Gen. of North Carolina, and Bernard A. Harrell, Asst. Atty. Gen., for the State.

J. C. Proctor, Dupree, Weaver, Horton, Cockman & Alvie, Raleigh, for defendant appellant.

CAMPBELL, Judge.

The record sets out: "Evidence Submitted Under Rule 19(d) (2)."

Rule 19(d) of this Court is as follows:

"(d) Evidence—How Stated. The evidence in record on appeal shall be in one of the two following methods:

(1) [This method provides for setting out the evidence in record on appeal in narrative form.]

(2) As an alternative to the above method (as a part of the record on appeal but not to be reproduced), the appellant shall cause the complete stenographic transcript of the evidence in the trial tribunal, as agreed to by the opposite party or as settled by the trial tribunal as the case may be, to be filed with the clerk of this Court and then the appellant in an appendix (emphasis added) to his brief shall set forth in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the questions raised on appeal, what he says the testimony of such witness tends to establish with citation to the page of the stenographic transcript in support thereof. The opposite party in case of disagreement as to any portion of the appendix in appellant's brief may set forth in an appendix to his brief in succinct language what he says the testimony of a witness establishes with citation to the page of the stenographic transcript in support thereof."

In the instant case, there was no appendix attached to the brief and this Court will, therefore, ex mero motu, dismiss the appeal.

Nevertheless, we have made a voyage of discovery through the entire record and considered each of the eighty-three exceptions taken by the defendant, and we find no merit in any of them.

The defendant made numerous written requests for special instructions and took thirty-one exceptions to the failure of the trial court to give instructions as requested. We have examined each of the requested instructions and find that where applicable and supported by evidence, the court did give in substance each of said instructions. "It is a well established rule with us that if a request is made for a specific instruction as to the rule of scrutiny in the event of an accomplice testifying for the prosecution, which is correct in itself and supported by evidence, the trial judge, while not required to parrot the instructions ``or to become a mere judicial phonograph for recording the exact and identical words of counsel,' must charge the jury in substantial conformity to the prayer." State v. Bailey, 254 N.C. 380, 386, 119 S.E.2d 165, 170.

In the instant case the defendant in apt time requested the trial court to charge the jury:

"(1) The testimony of an accomplice or co-conspirator must be weighed with great care and be scrutinized closely, carefully and cautiously. This testimony, which is subject to great suspicion, must be viewed with distrust and acted on only after due and careful deliberation.

(2) The testimony of an accomplice or co-conspirator is testimony from a tainted source.

(3) In determining the weight and consideration of the testimony of an accomplice or co-conspirator, you must consider whether there has been any promise to him or indication of favorable treatment for him or actual benefit conferred, promised or indicated by the circumstances of the case."

To the refusal of the trial court to give those requested instructions, the defendant took an exception.

The court actually charged the jury in the following words:

"Now, when you consider the evidence of an accomplice, the Court instructs you that you should scrutinize it with care and caution, and after giving it careful scrutiny and caution, if you then deem that the evidence of the accomplice is worthy of belief, you would give that testimony the same weight and credibility as you would any other witness you found to be worthy of belief."

We think this instruction complied with the requirements of law and that it was not error for the trial court to use this language and not the specific language requested by the defendant. State v. Smith, 267 N.C. 659, 148 S.E.2d 573. In fact, it would have been error to give the number three requested instruction, for there was no evidence to support it.

We find that the defendant had a fair trial, free of any prejudicial error and that the charge of the trial court was adequate and sufficient.

No error.

BRITT and MORRIS, JJ., concur.