State v. Weaver , 3 N.C. App. 439 ( 1969 )

165 S.E.2d 15 (1969) 3 N.C. App. 439

STATE of North Carolina
v.
Walter WEAVER.

No. 6815SC457.

Court of Appeals of North Carolina.

January 15, 1969. Certiorari Denied March 3, 1969.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.

W. R. Dalton, Jr., Burlington, for defendant appellant.

FRANK M. PARKER, Judge.

Appellant's first assignment of error, based on his exceptions Nos. 1 through 8, relates to the court's overruling his objections to certain questions asked him on cross-examination by the solicitor. The defendant had taken the stand and had testified in complete contradiction to the testimony given by the State's witnesses. For purposes of impeaching his credibility the solicitor cross-examined him as to his prior criminal record. Defendant admitted convictions for a large number of different criminal offenses committed over a long period of years. However, he denied convictions of certain other offenses, and the solicitor then rephrased the questions to include such details as the docket number of the case, the name of the court, the date of the trial, the offense charged, and the sentence imposed. Defendant's objections to these rephrased questions were overruled.

The defendant voluntarily became a witness in his own behalf and, therefore, was subject to cross-examination and impeachment as any other witness. G.S. § 8-54; Stansbury, N.C. Evidence 2d, § 108. It was proper for the solicitor to ask him questions concerning his prior criminal record for purposes of impeaching him, provided the questions were based on information and were asked in good faith. State v. Heard, 262 N.C. 599, 138 S.E.2d 243; 2 Strong, N.C. Index 2d, Criminal Law, § 86, p. 607. When defendant denied certain of the impeaching questions, his answers were conclusive in the sense that they could not be rebutted by other evidence, but this did not preclude the solicitor from pressing his cross-examination of the defendant by rephrasing his questions so as to make them more specific. The defendant was an evasive witness. The rephrased questions merely pinpointed with greater particularity the exact offenses which the solicitor was inquiring about and did not amount, as appellant contends, to an attempt to introduce in the guise of a question secondary evidence of the court records. With a criminal record as long as that which defendant freely admitted having it is little wonder that it was necessary to refresh his memory by giving specifics as to some of his convictions. It should be noted that as a result of four of the eight questions objected to the solicitor succeeded in getting from the defendant outright or implied admissions of guilt. There was no error in overruling defendant's objections to the form of the solicitor's questions.

Appellant's second assignment of error, based on his exception No. 9, relates to the court's overruling his objection to the solicitor asking defendant concerning a conviction for felonious assault when this conviction had been subsequently set aside and on retrial the defendant had been convicted only of simple assault. See State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. While it was improper for the solicitor to ask concerning a conviction later set aside if he knew such was the case, it could hardly have been prejudicial to defendant in this case. The addition of one more conviction to the long list already before the jury could not have had any appreciable effect and could not have constituted any real prejudice to the defendant. As stated by Parker, C. J., speaking for our Supreme Court in State v. Temple, 269 N.C. 57, 66, 152 S.E.2d 206:

"It is thoroughly established in our decisions that the admission of evidence which is not prejudicial to a defendant does not entitle him to a new trial. To warrant a new trial it should be made to appear by defendant that the admission of the evidence complained of was material and prejudicial to defendant's rights and that a different result would have likely ensued if the evidence had been excluded. State v. King, 225 N.C. 236, 34 S.E.2d 3; 1 Strong's N.C. Index, Appeal and Error, §§ 40 and 41."

Appellant's remaining assignments of error, Nos. 3 through 20, all relate to the manner in which the trial judge recapitulated or failed to recapitulate the evidence in his charge. There was no objection that the judge failed to comply with the provisions of G.S. § 1-180. Rather, appellant's contention is that in the judge's charge there was an imbalance and unequal array of the evidence for the State as compared with the evidence favorable to the defendant. We have read the entire charge carefully and compared it with the transcript of the entire evidence which was submitted to the jury. While the judge may have summarized the import of the evidence in a manner different from that which defendant might have preferred, the charge considered as a whole did, in our opinion, fairly recapitulate the evidence. The defendant made no objection at the trial to the judge's manner of recapitulating the evidence and made no suggestion or request for any other or additional statements in the charge, although he was given an opportunity to do so. "The general rule is that objections to the charge in stating the contentions of the parties or in recapitulating the evidence must be called to the court's attention in apt time to afford opportunity for correction, in order that an exception thereto will be considered on appeal." 3 Strong, N.C. Index 2d, Criminal Law, § 163, pp. 119-120.

This was not a complicated case, though the evidence was in sharp conflict as to defendant's guilt. It was for the jury to decide and by their verdict they have resolved the conflicts in the evidence against the contentions of the defendant. At his trial and on this appeal the defendant's court-appointed counsel has ably and diligently represented him. The entire record discloses defendant has had a fair trial free from prejudicial error.

No error.

BROCK and BRITT, JJ., concur.