State v. Brooks ( 1963 )

132 S.E.2d 354 (1963) 260 N.C. 186

STATE
v.
James Edward BROOKS.

No. 74.

Supreme Court of North Carolina.

September 18, 1963.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Richard T. Sanders, for the State.

George Pennell and Dailey & Harrell, Asheville, for defendant-appellant.

SHARP, Justice.

The evidence, taken in the light most favorable to the State, was sufficient to support a finding that the defendant was handling the gun in a culpably negligent manner at the time it fired and killed Jones. State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768. Any careless and reckless use of a loaded gun which jeopardizes the safety of another is unlawful, and if death results therefrom it is an unlawful homicide. State v. Turnage, 138 N.C. 566, 49 S.E. 913; State v. Hovis, 233 N.C. 359, 64 S.E.2d 564. For the most recent discussion of this rule of law see the opinion of Parker, J. in State v. Foust, 258 N.C. 453, 128 S.E.2d 889. Defendant's motion for nonsuit was properly overruled.

Defendant contends that he is entitled to a new trial because the court permitted the State to introduce in evidence, over his objection, the signed statement made by Uddyback to the police on January 17, 1963 for the purpose of corroborating his testimony. He argues that this written statement was not, in fact, corroborative. Pertinent portions of the statement follow:

"On the afternoon of 17th of January I arrived at 23 Clingman Avenue where Robert Jones, the deceased, and James Brooks were shooting crap. Brooks and Jones got into an argument over $2.00 that Jones was supposed to owe Brooks. Brooks asked for the $2.00 and Jones got up an got his hat and coat off the chair and said that he was not going to pay anyone a damn thing today. At this point Brooks reached behind the couch and came up with a shotgun in one hand. He shoved Jones with both the gun and his other hand, and I jumped up off the couch across the room from Brooks and ran over to Brooks' left near the door when the gun went off. Jones fell on his left side and rolled over.

"I asked Brooks, `You didn't shoot him, did you?' and he said, "I don't know.' That is when I saw the blood on Jones' coat. Brooks told Sonny James Clark to go and call an ambulance, which Clark did.

"That is when Brooks took the shotgun and left by the back door. I don't know which way he went. Jones was still breathing at this time. I stayed until the ambulance came and took Jones to the hospital."

Defendant's objection and motion to strike were directed to the entire statement.

Although not requested to do so, at the time this statement was admitted, the court instructed the jury that it was offered only for the purpose of corroborating Uddyback if the jury should find that it did corroborate him.

If a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this "new" evidence under a claim of corroboration. Neither may the State impeach or discredit its own witness by introducing his prior contradictory statements under the guise of corroboration. State v. Bagley, 229 N.C. 723, 51 S.E.2d 298; State v. Melvin, 194 N.C. 394, 139 S.E. 762; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473. However, if the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury. State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Walker, 226 N.C. 458, 38 S.E.2d 531; State v. Scoggins, supra.

We perceive no substantial variance between the signed statement Uddyback gave the police in January and his testimony at the trial in March. No part of the written statement contradicted his testimony at the trial. Portions of it are not identical but, be that as it may, defendant made no motion to strike or exclude any specific part of the statement.

Where portions of a document are competent as corroborating evidence and other parts incompetent, it is the duty of the party objecting to the evidence to point out the objectionable portions. Objections to evidence en masse will not ordinarily be sustained if any part is competent. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Wilson, 176 N.C. 751, 97 S.E. 496; State v. English, 164 N.C. 497, 80 S.E. 72; Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196; Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19. N.C. Index, Trial, § 15.

We have considered all of defendant's exceptions which have been properly set out in his assignments of error. The judge fairly and clearly submitted the defendant's contention that the shooting was accidental. He charged the jury in accordance with the decisions of this court. State v. Faust, 254 N.C. 101, 112, 118 S.E.2d 769; State v. Dewitt, 252 N.C. 457, 114 S.E.2d 100; State v. Crisp, 244 N.C. 407, 414, 94 S.E.2d 402, 67 A.L.R. 2d 236.

The sentence imposed was within the discretionary limits of G.S. § 14-18. State v. Richardson, 221 N.C. 209, 19 S.E.2d 863. As this Court said in State v. Smith, 238 N.C. 82, 76 S.E.2d 363:

"While the punishment inflicted is substantial, abuse of discretion has not been shown, nor has it been made to appear that the judgment pronounced comes within the constitutional inhibition against `cruel or unusual punishments'. Constitution of N.C. art. I, sec. 14; State v. Swindell, 189 N.C. 151, 126 S.E. 417; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Daniels, 197 N.C. 285, 148 S.E. 244, and cases cited."

In the trial below, we find

No error.