State v. Ferguson , 280 N.C. 95 ( 1971 )

185 S.E.2d 119 (1971) 280 N.C. 95

STATE of North Carolina
v.
Mark FERGUSON.

No. 155.

Supreme Court of North Carolina.

December 15, 1971.

Robert Morgan, Atty. Gen., by Russell G. Walker, Jr., Asst. Atty. Gen., for the State.

Riddle & Shackelford, by Robert E. Riddle, Asheville, Attys., for defendant appellant.

HIGGINS, Justice.

The State's evidence was sufficient to make out a case of murder. The defendant's evidence tended to support his plea of self-defense. The jury, finding the truth to lie in the middle ground, convicted the defendant of voluntary manslaughter. The court imposed a sentence which approached the maximum provided by law for manslaughter. G.S. § 14-18.

The defendant's Assignments of Error Nos. 1 and 2 involve the court's failure to exclude the testimony of Mrs. Tinsley with reference to the defendant's action in sharpening his knife and his statement, "That'll do the work." The defendant's objection to the testimony is twofold. First, the witness' statement was not responsive to the solicitor's question; and second, the evidence tended to show premeditation which was eliminated as an element of the charge by the solicitor's announcement that the State would prosecute for second degree or manslaughter only.

It is true Mrs. Tinsley's testimony was not responsive to the solicitor's question. No doubt she and the solicitor had conferred and both she and the solicitor knew the State's purpose in having her as a witness was to show the defendant sharpened a knife and made the statement that it would do the work prior to his using it with the fatal result. The solicitor's first question was intended to place the defendant on the scene. Obviously the next question would involve the sharpening of the knife and the statement that it would do the work. Mrs. Tinsley, not being familiar with court techniques and niceties, did not wait for the second question. Should the court have stricken the answer and waited for the next question which would produce the identical answer?

Whether an answer is responsive to a question is not the ultimate test on a motion to strike. If an unresponsive answer produces irrelevant facts, they may and should be stricken and withdrawn from the jury. However, if the answers bring forth relevant facts, they are nonetheless admissible because they are not specifically asked for or go beyond the scope of the question. In Re Tatum, 233 N.C. 723, 65 S.E.2d 351; State v. Staten, 271 N.C. 600, 157 S.E.2d 225; Wigmore on Evidence, Third Edition, Vol. III, Sec. 785, p. 160; Stansbury, N.C. Evidence, 2d § 77. The Assignments of Error based on Exceptions Nos. 1 and 2 are not sustained.

The defendant by Assignment No. 3 challenges the admission of Mrs. Tinsley's testimony with regard to the knife on the ground it tended to support the charge of murder in the first degree which the solicitor by his announcement had removed from the case. The solicitor's announcement the State would not prosecute for the capital felony, but for a lesser included offense would not render incompetent any pertinent evidence bearing on the defendant's guilt. The evidence the defendant sharpened his knife, making it ready to "do the work" at a time before the fatal encounter, had bearing on the defendant's criminal intent and it refuted his evidence that he picked up the knife from beside his chair at a time the deceased was assaulting him. The solicitor's announcement the State would not prosecute for the capital felony did no more than preclude the State thereafter from submitting to the jury the issue of murder in the first degree. State v. Allen, 279 N.C. 115, 181 S.E.2d 453; State v. Peeden, 272 N.C. 494, 158 S.E.2d 615; State v. Miller, 272 N.C. 243; 158 S.E.2d 47; State v. Pearce, 266 N.C. 234, 145 S.E.2d 918.

The defendant's final contention is the court should have, but failed to give him credit for the time he spent in the hospital for psychiatric evaluation under the court's order. Our cases hold the defendant is entitled to credit for time served on a prior sentence for the same offense. We find no authority where credit is allowed for time in the hospital to determine legal competence to plead to the indictment and to conduct the defense. State v. Weaver, 264 N.C. 681, 142 S.E.2d 633; State v. Foster, 271 N.C. 727, 157 S.E.2d 542; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28; State v. Walker, 277 N.C. 403, 177 S.E.2d 868.

The examination of the record fails to disclose any reasonable ground upon which to base a new trial. In the trial, verdict and judgment there is in law

No error.