State v. Neely , 4 N.C. App. 475 ( 1969 )

166 S.E.2d 878 (1969) 4 N.C. App. 475

STATE of North Carolina
v.
Jerry Leon NEELY.

No. 6926SC220.

Court of Appeals of North Carolina.

April 30, 1969.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis, Trial Attorney Charles M. Hensey and Staff Attorney D. M. Jacobs, Raleigh, for the State.

W. Herbert Brown, Jr., Charlotte, for defendant appellant.

CAMPBELL, Judge.

The defendant's first contention is that the trial judge erred in denying his motions for judgment as of nonsuit made at the close of the State's evidence and renewed at the close of all the evidence. It is argued, since Daniels was not under a subpoena to testify as a witness and since his testimony had been completed when the threats were made, there was no intimidation or threatening of a witness within the meaning of G.S. § 14-226, which provides:

"Intimidating or interfering with jurors and witnesses.—If any person shall by threats, menaces or in any other manner intimidate or attempt to intimidate any person who is summoned or acting as a juror or witness in any of the courts of this State, or prevent or deter, or attempt to prevent or deter any person summoned or acting as such juror or witness from attendance upon such court, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned in the discretion of the court."

The gist of this offense is the obstruction of justice. In the instant case, Daniels was in the position of being a prospective witness because, at the time in question, an appeal had been taken to the superior court for a trial de novo. The evidence on behalf of the State clearly showed that, by his threats, the defendant was attempting to intimidate and threaten this witness and to prevent him from testifying in the superior court on the trial de novo.

"Influencing or attempting to influence a witness in regard to the testimony he will give, or inducing or attempting to induce a witness to absent himself and therefore not to give any testimony, is an obstruction of justice. It is an offense against the very object and purpose for which courts are established. It is a misdemeanor under the common law and an offense by statute in many jurisdictions. * * * It is immaterial, therefore, that the person procured to absent himself was not regularly summoned or legally bound to attend as a witness." 39 Am.Jur., Obstructing Justice, § 6, p. 504.

"It is an offense, at common law, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying on the trial of a cause, and such conduct may be made an offense by statute. The gist of the offense is the willful and corrupt attempt to interfere with and obstruct the administration of justice." 67 C.J.S. Obstructing Justice § 8, p. 53.

We are of the opinion that the evidence on behalf of the State was sufficient to withstand the defendant's motion for judgment as of nonsuit. Therefore, the first contention is without merit.

The defendant's second contention is that the trial judge erred in denying his motion to strike an answer of a State's witness, Daniels. It is argued that the answer was unsolicited and unresponsive and that it concerned the defendant's criminal record. On the cross-examination of Daniels by the defense counsel, the following occurred:

"A. I was scared for me and my wife * * * I didn't want them doing nothing to me or my wife.

Q. You say you scared of these two defendants here?

A. Yeh. If anybody had a record like them, you'd be scared of them too.

BROWN: Move to strike the answer.

COURT: Motion denied."

The question asked by defense counsel was calculated to elicit the very response which was given. Daniels had a right to explain his answer and defense counsel "opened the door" for such an explanation. State v. Williams, 255 N.C. 82, 120 S.E.2d 442. Therefore, the second contention is without merit.

The defendant had a fair and impartial trial free from prejudicial error.

The judgment of the trial court is

Affirmed.

BROCK and MORRIS, JJ., concur.