State v. Haith , 7 N.C. App. 552 ( 1970 )

172 S.E.2d 912 (1970) 7 N.C. App. 552

STATE of North Carolina
v.
Jim HAITH. and
STATE of North Carolina
v.
Jery MILES.

No. 7015SC57.

Court of Appeals of North Carolina.

April 1, 1970.

Atty. Gen. Robert Morgan by Trial Attorney Charles M. Hensey, Raleigh, for the State.

John D. Xanthos, Burlington, for defendant appellant.

VAUGHN, Judge.

The defendants bring forward twenty-five assignments of error. All are found to be without merit. The first assignment of error is to the allowance of the motion to consolidate the cases for trial. In the present case this was a matter so clearly within the discretion of the trial judge that we do not deem it necessary to discuss the exception. State v. Bryant, 250 N.C. 113, 108 S.E.2d 128. Assignment of Error No. 1 is overruled.

It is equally well settled that, for the purpose of impeaching defendant's credibility as a witness, the solicitor may cross-examine him as to collateral matters, including other criminal offenses and degrading actions, provided the questions are based on information and asked in good faith. 2 Strong, N.C. Index 2d, Criminal Law, § 86, p. 607. The defendants' assignments of error Nos. 2 and 3, based on such cross-examination of the defendant Miles, are overruled. We have also considered defendants' assignments of error Nos. 4, 5 and 6 and find them to be without merit.

At the conclusion of all the evidence, the defendants' attorney made the following motion: "On the charge of assault with intent to kill resulting in serious bodily injuries, we ask the Court to allow motion to dismiss insofar as the intent to kill or resulting in serious bodily injuries." The defendants' seventh assignment of error is that the court denied this motion. Suffice to say that, even from the summary of the evidence set out in this opinion, it is readily apparent that the motion was properly denied. This assignment of error is overruled.

Assignments of error numbered 8 through 24 inclusive, all relate to the defendants' contention that the trial judge failed to instruct the jury properly as required by G.S. § 1-180. Typical of these is assignment of error No. 9 which is directed to the following instruction by the court: "Your duty is to find the facts from the evidence and apply to those facts the law as given to you in these instructions." It is difficult to perceive how the defendants contend this to be prejudicial. At any rate, we do not deem it so. Assignments of error 8 through 24 are overruled.

The defendants, in their final assignment of error assert "that the prison sentence was excessive and not authorized by law. This is indeed one of the vital questions presented by this appeal." The answer to defendants' question may be found in G.S. § 14-33 which provides, among other things, that assault with a deadly weapon is punishable "by a fine in the discretion of the court, imprisonment not to exceed two (2) years, or both such fine and imprisonment." The prison sentence if not less than eighteen (18) or more than twenty-four (24) months, which was imposed on each defendant, is within the limits of this statute. We have reviewed the entire record and find no prejudicial error.

No error.

MALLARD, C. J., and MORRIS, J., concur.