State v. Clontz , 1969 N.C. App. LEXIS 1234 ( 1969 )

BROCK, J.

Defendant’s assignment of error No. 9 is addressed to the ruling of the trial judge in sustaining State’s objection to a question propounded to a defense witness. The testimony of the defense witness appears in the record on appeal as follows:

“My name is Fred Garrett. I live in Murphy and will have lived there three years this April. I knew Henry Dotson prior to his death. Sometime prior to his death, I had a conversation with Henry Dotson.

“Q. What did Henry Dotson state to you on this occasion with regard to the defendant, Leonard Clontz, and what threat did he make to you?

“State objects. Sustained. Exception No. 9.”

The question to which the objection was sustained was improper for at least two reasons. First, it was leading by suggesting a fact not in evidence; second, it is susceptible of the interpretation that it was asking about a threat by deceased against the witness Garrett which would be immaterial. Absent the last clause it appears that the question would have been proper; however, counsel did not undertake to rephrase his question. Instead counsel requested that the witness be allowed to answer in the absence of the jury. The trial judge sent the jury from the courtroom to allow the answer in the record. After the jury retired from the courtroom counsel asked his question again, apparently in a proper manner and the witness' answer was responsive. However, this proper question was never propounded before the jury and consequently never ruled upon by the trial judge. Defendant may not now complain that because his question in the absence of the jury was proper that the ruling of the trial judge upon the question propounded in the presence of the jury was error.

While the jury was out defendant called to the stand defendant’s sister, who had not theretofore testified, and questioned her. The questions propounded to her related to what the previous witness Garrett had told her. The solicitor for the State objected to this testimony being offered before the jury and the objection was sustained. This ruling of the trial judge is the subject of defendant’s assignment of error No. 10. Since the previous witness’ (Garrett’s) testimony was never properly offered and therefore not before the jury, it would obviously be incompetent for defendant’s sister to testify as to what the previous witness, Garrett, had told her.

Defendant’s brief discusses well-established rules of evidence with relation to a showing by á defendant upon a plea of self-defense in a homicide case of communicated threats by deceased against defendant (See State v. Rice, 222 N.C. 634, 24 S.E. 2d 483; State v. Thomas, 5 N.C. App. 448, 168 S.E. 2d 459), and of uncommunicated threats by deceased against defendant (See State v. Minton, 228 N.C. 15, 44 S.E. 2d 346; State v. Hurdle, 5 N.C. App. 610, 169 S.E. 2d 17). However, these principles do not operate until evidence of threats is properly offered. Defendant’s assignments of error Nos. 9 and 10 are overruled.

Assignments of error Nos. 1 through 11 (except Nos. 9 and 10 discussed above) are not brought forward in defendant’s brief and they are therefore deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

Assignments of error Nos. 12 through 29 are to the charge of the Court to the jury. Five of these are not brought forward in defendant’s brief and are deemed abandoned. Rule 28, supra. We have considered the remaining assignments of error to the charge, and when the charge is viewed contextually, as it must be, we perceive no error prejudicial to defendant. Defendant has had a fair trial free from prejudicial error.

Affirmed.

BRItt and VaughN, JJ., concur.