State v. Smith , 5 N.C. App. 635 ( 1969 )

169 S.E.2d 4 (1969) 5 N.C. App. 635

STATE of North Carolina
v.
James W. SMITH.

No. 6922SC372.

Court of Appeals of North Carolina.

August 13, 1969.

Robert Morgan, Atty. Gen., by James F. Bullock, Deputy Atty. Gen., for the State.

Bennett, Kelly & Long, by George W. Hendon, Asheville, for defendant appellant.

BROCK, Judge.

Defendant assigns as error that the trial court allowed the State to cross-examine defendant's character witnesses as to whether they were aware of a previous indictment against defendant for assault. At the trial defendant took the stand and testified in his own behalf. The defendant then availed himself of his right to introduce evidence of his own good character by calling witnesses to testify. After they testified as to the defendant's good character, the solicitor was permitted to ask each witness the following question, over defendant's objection: "Were you aware when you testified as to his character of the fact that he had been indicted for assault on a female ?"

Defendant testified in his own behalf before he offered his character witnesses; but, for some reason not apparent from the record, the solicitor did not elect to ask the defendant about an indictment for assault on a female. Such cross-examination would have been proper if fairly done; State v. Brown, 266 N.C. 55, 145 S.E.2d 297; and defendant's answer would have been binding on the State. 2 Strong, N.C. Index 2d, Criminal Law, § 86, p. 606. Had defendant denied that he had ever been so indicted, certainly the State could not have pursued the inquiry through other witnesses. 2 Strong, N.C. Index 2d, supra. Having elected not to cross-examine the defendant and give him the opportunity to admit or deny such an indictment, the State could not go into the question of specific acts of misconduct through defendant's character witness.

"Ordinarily where a defendant introduces evidence of his good character it is error to permit the State to cross-examine the character witness as to particular acts of misconduct on the part of the defendant. Neither is it permissible for the State to introduce other evidence of such misconduct. Under such circumstances, however, the State is permitted to introduce evidence of the defendant's bad character. (Citing cases.)

"The above rule is subject to certain exceptions, among them being where a defendant goes upon the stand and admits certain specific acts of misconduct, as the defendant did in the trial below, and then introduces evidence of his good character, the State has the right to cross-examine such character witness regarding the admitted acts of misconduct in order to ascertain his conception of what constitutes good character. (Citing cases.)" State v. Church, 229 N.C. 718, 51 S.E.2d 345.

Defendant next argues that the trial court erred in denying defendant's motions for nonsuit as to the felony charge because of the absence of any proof that the deadly weapon (the tire tool) inflicted any serious injury. However, the State's evidence tended to show that as defendant approached Ebert he reached from behind his body and pulled out a tire tool, held it up in the air, charged at Ebert and brought the tire tool down. Ebert reached up and grabbed it at the same time. The tool came down and hit him a glancing blow on the head and stopped in his shoulder, at which point he became dazed and dizzy. The State's evidence further tended to show that Mr. Ebert had swollen areas about the back part of his skull. It is manifestly evident that a blow on the head with a tire tool might cause serious injury. Whether it did or did not must be determined from the facts of the particular case and is a question the jury must answer under proper instructions. State v. Jones, 258 N.C. 89, 128 S.E.2d 1.

We have not overlooked defendant's assignments of error to the charge of the court to the jury. These assignments of error seem to have some merit, but under the circumstances we feel they will not reoccur upon a new trial.

New Trial.

CAMPBELL and MORRIS, JJ., concur.