Brown v. Brown , 264 N.C. 485 ( 1965 )

141 S.E.2d 875 (1965) 264 N.C. 485

Nell G. BROWN
v.
Landis G. BROWN.

No. 692.

Supreme Court of North Carolina.

May 19, 1965.

W. K. Rhodes, Wilmington, S. Bunn Frink and E. J. Prevatte, Southport, by W. K. Rhodes, Wilmington, for plaintiff appellant.

Burney & Burney, by John J. Burney, Jr., Wilmington, for defendant appellee.

PER CURIAM.

Plaintiff first assigns as error that the court's recapitulation of certain parts of plaintiff's testimony is at variance with her actual testimony in the record. An examination of her testimony and the charge shows that the variance, if any, is slight. The court is not required to give the jury a verbatim recital of the testimony. It must of necessity condense and summarize the essential features thereof. When its recital of the evidence does not correctly reflect the testimony of the witness in any particular respect, it is the duty of counsel to call attention thereto and request a correction. As the trial court's attention was not called thereto, and no exception was entered in apt time, this assignment of error is not now tenable. Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829.

Plaintiff's second assignment of error is: "The court erred in its explanation of the law on the subject to the jury. This assignment of error is based upon plaintiff's exception #2 (R. p. 65)." Her third and last assignment of error is: "The court erred in its explanation of the law on the subject to the jury. This assignment of error is based upon plaintiff's exception #3 (R. p. 67)." We have stated again and again that the error relied upon should be definitely and clearly presented, and the Court not compelled to go beyond the assignment of error itself to learn what the question is. Balint v. Grayson, 256 N.C. 490, 124 S.E.2d 364; Strong's N.C.Index, Vol. 1, Appeal and Error, § 19, p. 90 (Supplement p. 31). In addition, these assignments of error are "broadside," in that these assignments of error in themselves do not point out any particular parts of the charge objected to, but require an examination of the charge. However, in spite of the defective and faulty assignments of error, we have examined the charge as a whole, and find no error sufficiently prejudicial to justify disturbing the verdict and judgment entered.

The jurors here were the sole judges of the credibility of the witnesses. They had a right to believe all that a witness testified to, or to believe nothing that a witness testified to, or to believe part of the testimony and to disbelieve part of it. It is manifest from a careful reading of the three pages of plaintiff's testimony on direct examination and of the nine pages of her testimony on cross-examination, and of the testimony of her witnesses, that the plaintiff's and defendant's married life, certainly since their first separation in 1957, has been one of discord and strife, and that her evidence would permit a jury to answer the issues submitted to them either in her favor or against her, as they found the facts to be under a charge free from prejudicial error.

In the trial below plaintiff has shown no prejudicial error.

No error.