State v. Burgess , 2 N.C. App. 677 ( 1968 )

163 S.E.2d 662 (1968) 2 N.C. App. 677

STATE of North Carolina
v.
George T. BURGESS, Jr.

No. 6814SC253.

Court of Appeals of North Carolina.

October 23, 1968.

Thomas Wade Bruton, Atty. Gen., by Bernard A. Herrell, Asst. Atty. Gen., for the State.

Norman E. Williams, Durham, for defendant appellant.

MALLARD, Chief Judge.

In his brief, the defendant asserts that there are four questions presented by his appeal. Only one of these questions is necessary to the disposition of this appeal. It is: Did the court err in allowing the jury to hear testimony concerning the prior criminal record of the defendant when he offered no evidence and did not testify in his own behalf?

During the course of the trial, the solicitor was questioning co-defendant Ross Robert Allea, and the following occurred:

"Q. What, if anything, else did the defendant tell you about himself which led you to believe that he was a person of such experience that you all could carry this off successfully?

A. Well, he was bragging about killing his wife.

OBJECTION.

SUSTAINED.

A. He told me about his previous criminal record, that he had been in prison for several years on several counts.

OBJECTION.

OVERRULED."

The Attorney General with commendable frankness admits in his brief "that the one sentence referred to in the evidence does not appear to be readily relevant to the issues in the case" and that "ordinarily, the admission of such testimony into evidence would undoubtedly constitute fatal and prejudicial error." However, the Attorney General seeks to distinguish this case on that grounds that the admission of this testimony did not constitute prejudicial error. While we agree with the initial contentions of the Attorney General, we are unable to agree with the latter.

In State v. McClain, 240 N.C. 171, 81 S.E.2d 364, we find the following: "Since evidence of other crimes is likely to have a prejudicial effect on the fundamental right of the accused to a fair trial, the general rule of exclusion should be strictly enforced in all cases where it is applicable." The present case is a case where strict enforcement of the general rule of exclusion should be strictly adhered to. Here, it would appear that the testimony of his prior criminal record was incompetent and calculated to prejudice the minds of the jurors against the defendant. Where prejudicial and incompetent evidence has been admitted, a new trial will be awarded. State v. Rinaldi, 264 N.C. 701, 142 S.E.2d 604.

The other question we discuss which defendant attempted to raise relates to the identification and introduction of two pistols and some ammunition. The defendant was being tried for forgery and uttering a forged instrument. The evidence tended to show that the defendant had the pistols in his briefcase, and the ammunition was found in the car in which the defendant was riding. The evidence does not show, or infer, that these pistols and this ammunition had any connection with the crimes for which the defendant was being tried. The defendant contends that their admission in evidence was prejudicial error. If anyone, except when on his own premises, shall wilfully and intentionally carry concealed about his person any pistol or other deadly weapon, he shall be guilty of a misdemeanor. G.S. § 14-269. The defendant was not being tried for a violation of this statute. However, the defendant did not make proper objection to the identification and introduction of the pistol and ammunition and, therefore, these questions are not properly presented for decision on the record. Since the case goes back for a new trial, we deem it proper to discuss this phase of the case.

It is established law in North Carolina that "the competency of evidence is not presented when there is no objection or exception to its admission." 7 Strong, N.C. Index 2d, Trials, § 15, p. 277 (1968).

The other questions presented by the defendant are not discussed for the reason that they may not occur on a new trial.

New trial.

CAMPBELL and MORRIS, JJ., concur.