State v. Metcalf , 18 N.C. App. 28 ( 1973 )

195 S.E.2d 592 (1973) 18 N.C. App. 28

STATE of North Carolina
v.
Horace Lee METCALF.

No. 7330SC142.

Court of Appeals of North Carolina.

April 11, 1973.

Atty. Gen., Robert Morgan by Associate Atty. Gen., Ruth G. Bell, for the State.

McKeever, Edwards, Davis & Hays by George P. Davis, Jr., Murphy, for the defendant-appellant.

CAMPBELL, Judge.

Defendant contends that Dr. Mitchell's opinion was improperly admitted because it was based upon facts not in evidence (that the two bullets were fired from the pistol found next to the body), and that the question asked on recall was different from the question asked originally.

We agree that the opinion was improperly admitted, but for a different reason: whether the hypothetical question was or was not properly phrased, the witness may not testify that the deceased could not have shot herself. State v. Carr, 196 N.C. 129, 144 S.E. 698 (1928).

In Carr the defendant was convicted of manslaughter in the shooting death of her husband. The deceased had one bullet wound two inches above his right eye; the bullet traveled downward. There were no powder stains on the body. Defendant testified that the deceased had shot himself.

A medical expert who examined the body testified, and answered the following question:

"``Q. From the position the body was lying in, from your examination of it, have you an opinion as to whether that wound could have been made by a gun in the hands of this deceased or not? A. I don't think it is possible for the deceased to have fired the gun and made the wound that I saw.'"

The court held that the answer was objectionable because it did not follow a question outlining the facts observed and relied on by the witness in forming his opinion. Additionally, the court said the answer was ultimately inadmissible in any event because it answered the exact issue which the jury was to determine.

". . . But the exception to the general rule which excludes opinion evidence is subject to the limitation that the opinion or inference of the witness must not be an answer to the exact issue which the jury is to determine. When the witness testified that he did not think it possible for the deceased to have fired the gun and to have made the wound he necessarily testified in effect that in his opinion the deceased did not kill himself. True, the ``exact issue' was whether the defendants are guilty, but if the deceased killed himself the conclusion that the defendants did not kill him would necessarily follow. . . ." State v. Carr, supra, at 132, 144 S.E. at 700.

In a homicide prosecution, where it is contended that the deceased killed himself, it is proper for the State to present evidence from which the jury may infer that the deceased did not kill himself. State v. Atwood, 250 N.C. 141, 108 S.E.2d 219 (1959).

We agree with the State that the evidence was sufficient to withstand defendant's motion for nonsuit. However, we cannot say that the error of the court in allowing into evidence the testimony of Dr. Mitchell to the effect that deceased could not have committed suicide was harmless error. We think it was sufficiently prejudicial to warrant a new trial.

New trial.

BRITT and MORRIS, JJ., concur.