State v. Phillips , 5 N.C. App. 353 ( 1969 )

168 S.E.2d 704 (1969) 5 N.C. App. 353

STATE of North Carolina
v.
Ike PHILLIPS.

No. 6916SC359.

Court of Appeals of North Carolina.

July 23, 1969.

Atty. Gen., Robert Morgan, by Asst. Atty. Gen., Bernard A. Harrell, for the State.

Musselwhite & Musselwhite, by W. E. Musselwhite and J. H. Barrington, Jr., Lumberton, for defendant appellant.

CAMPBELL, Judge.

The defendant took some sixteen exceptions during the course of the trial and assigned each one in his assignments of error. Many of these exceptions, however, were expressly abandoned in the brief.

The first exception is to the sustaining of an objection by the State to a question asked the witness Betty Butler on cross-examination. The record does not show what the answer to the question would have been, and therefore, we cannot tell whether the defendant was prejudiced.

This exception is without merit.

The second exception assigned by the defendant as error was to the effect that the court, during a discussion between defense counsel and the Solicitor on behalf of the State with regard to the identity of a picture stated:

"Witness has previously identified this car as photo of Ike Phillips' car."

The record does not disclose that this comment by the trial judge was in any way prejudicial to the defendant. The record further reveals that the defendant made no objection to this comment and took no exception. At any rate, the comment by the court was in no way prejudicial to the defendant and there is no merit in this exception.

The third exception brought forward by the defendant is the following:

"Q. Mr. Oliver, is the automobile shown in this picture the same automobile you have seen Ike Phillips driving?

A. One just like it, if it is not it.

OBJECTION & MOTION TO STRIKE BY THE DEFENDANT.

* * * * * *

OBJECTION SUSTAINED."

The defendant now assigns as error the failure of the court specifically to instruct the jury in connection with the motion to strike.

After the objection had been sustained by the court, defense counsel did not request the court to instruct the jury not to consider the answer. Under the facts here presented, it was incumbent upon defense counsel to make the specific request to the court. There is no merit in this exception anyway because the question and answer were not prejudicial to the defendant so as to justify a new trial.

The fourth group of exceptions made by the defendant is to the effect that the trial judge failed to comply with G.S. § 1-180, in that when the motion for nonsuit of the charge of felonious assault was sustained and the case submitted to the jury only on the charges of an assault with a deadly weapon, the misdemeanor charge, and on the charge of kidnapping, it was incumbent on the trial judge to go further and explain to the jury that the felonious assault charge had been dismissed. In the brief for the defendant it is stated:

"It is true that the court later correctly charged the jury as to the elements necessary to make out a case of assault with a deadly weapon * * * but at no point was the jury instructed as to the difference between the crimes of felonious assault and assault with a deadly weapon, nor that the felonious assault charge had been dismissed."

This is certainly a novel argument, but in law, there is no merit in it. The trial judge told the jury about the dismissal of other elements of the assault bill of indictment and that only the assault with a deadly weapon remained. It was not incumbent upon the trial judge to charge with regard to the law on something that was no longer before the jury. The statute only requires the court "to state only such evidence as is necessary to explain and apply the law to the facts in the case". State v. Tyson, 242 N.C. 574, 89 S.E.2d 138. This court did this.

There is no merit in this exception.

The fifth group of exceptions is that the trial judge expressed an opinion when charging the jury. These exceptions are directed to the following two excerpts from the charge:

1. "I know by now, having sat here all the week, you must know what I mean when I say to you, in such a case defendant, who does so, is the beneficiary of a presumption of law and that presumption is one of innocence. Nonetheless, in spite of the fact that you may now be familiar with the importance of this case, causes me to instruct you about it again and specifically."

2. "I take it that you are bound to know and especially in a case as serious and as important as this, that it is not a question of sympathy for anybody and not a question of prejudice against anybody, and you must not permit any consideration of that kind to enter your minds or influence your thinking or judgment."

The first quotation above occurred in the beginning of the charge and followed this sentence:

"Now, to these charges, members of the jury, the defendant has come into court and through his counsel, has entered a plea of not guilty."

Immediately following the first quotation above to which exception has been taken, the trial judge went on to explain to the jury what is meant by "presumption of innocence". When taken in context, there is no expression of opinion by the trial judge of a prejudicial nature to the defendant.

The second excerpt from the charge to which exception has been taken as expressing an opinion, followed immediately after an instruction to the jury as follows:

"Members of the jury, in passing on the testimony of any witness for either side, you ought to take into consideration the intelligence which is manifested by these witnesses, while on the witness stand; the fairness or lack of fairness they demonstrated, if they do; the reasonableness or unreasonableness of their testimony, if any; their interest in the result of the action, or bias or prejudice, if any; their means of knowing the facts of which they have testified; and you should give in the final analysis to each witness such weight as to you he seems to be entitled. You may believe all of what any witness says, or disbelieve all that a witness has said; you may believe a part of what he says and disbelieve a part; or you may disbelieve altogether."

When taken in context, the portion of the charge to which exception is taken does not express any opinion of the trial judge prejudicial to the defendant.

There is no merit in this exception.

The sixth group of exceptions assigned as error by the defendant is that the trial court in the charge to the jury failed adequately to set forth and explain to the jury the defense of alibi relied upon by the defendant. The portion of the charge excepted is to as follows:

"Now, members of the jury, probably all of your lives you have heard use of the word, ``alibi.' The word, alibi, is a perfectly legitimate, proper and correct English word, which has a legal meaning. The word, alibi, means elsewhere. It is not, properly speaking, a defense within any accurate meaning of the word, defense, but it is a mere fact that may be used to call and question the identity of the person who is charged or the entire basis of the prosecution. The burden of proof, in proving an alibi, does not rest upon the defendant. The burden of proof never rests upon the defendant for any purpose in a criminal trial. And the burden of proof does not rest upon him to show his innocence or his whereabouts or disprove anything necessary to establish the crime with which he is charged.

A defendant's presence at or participation in the crime or crimes charges, [sic] are affirmative material facts and the State must show beyond a reasonable doubt those facts to sustain a conviction. For the defendant to say he was not there is not an affirmative proposition. It is a denial of the existence of a material fact in the case and, therefore, the defendant's evidence of an alibi is to be considered by you like any other evidence, wherein the defendant tries to refute or disprove the evidence of the State, although the burden for doing that is not upon him, and if upon consideration of all of the evidence in the case, including the defendant's evidence in respect to an alibi, there arises in your minds a reasonable doubt as to his guilt, he should be acquitted."

The court fairly summarized the evidence offered by the defendant and fully and adequately set forth the contentions of the defendant all tending to establish that he was not present either in Fairmont or on Highway 41 between Fairmont and Fair Bluff at the time the assault and kidnapping occurred. The various witnesses offered by the defendant accounted for all of his time and his presence elsewhere during the period of the assault and the kidnapping.

The above charge with regard to alibi was adequate and complete under the facts of this case and nothing prejudicial to the defendant is shown. State v. Lovedahl, 2 N.C.App. 513, 163 S.E.2d 413 (certiorari denied, 274 N.C. 518).

The record in this case discloses that the defendant has been afforded a fair and an impartial trial free of error of law and that is all to which he is entitled. The jury found the facts to be contrary to those contended by the defendant.

No error.

BROCK and MORRIS, JJ., concur.