State v. Carnes , 18 N.C. App. 19 ( 1973 )

195 S.E.2d 588 (1973) 18 N.C. App. 19

STATE of North Carolina
v.
Dahl Thomas CARNES.

No. 7326SC151.

Court of Appeals of North Carolina.

April 11, 1973.

Atty. Gen. Robert Morgan by James E. Magner, Jr., Asst. Atty. Gen., for the State.

Paul L. Whitfield, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant first assigns as error the trial court's incarceration of defendant pending the start of his trial on the following morning.

In State v. Smith, 237 N.C. 1, 74 S.E.2d 291 (1953), opinion by Justice (later Chief Justice) Parker, we find:

"``* * * It is within the discretion of the trial court whether accused should be placed in custody; and the court's proper exercise of discretion is not error where the jury were unaware that accused had been placed in custody, or were not influenced by that fact.' 23 C. J.S. Criminal Law § 977."

* * * * * *

"``In the absence of constitutional or statutory provisions to the contrary, the general rule is that the inherent power of the court to insure itself of the presence of the accused during trial may, in its discretion, be exercised so as to order a person who has been at liberty on bail, into the custody of the sheriff during trial of the case . . . It is not necessary for the court, in exercising its discretionary power to remand during trial, to file any reasons for such action; and if such order is made, it must be assumed, in the absence of a contrary showing, that the court acted in good faith and upon sufficient grounds.' 6 Am.Jur., Bail and Recognizance, Sec. 101."

In the instant case, defendant does not contend nor does the record show that he was placed in the custody of the sheriff in the jury's presence or that the jury was influenced by his being placed in custody. We perceive no error.

Defendant assigns as error the trial court's restriction of defendant's cross-examination of State's witnesses. We are unable to ascertain whether the trial court's rulings were prejudicial since the record does not disclose what the witnesses' testimony would have been had they been permitted to answer and the burden is on appellant to show prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972); State v. Royall, 14 N.C.App. 214, 188 S.E.2d 50 (1972). This assignment of error is without merit.

Defendant next assigns as error the failure of the trial court to declare a mistrial "due to the prejudicial and inflammatory questions and remarks of the Solicitor." Defendant's main contention under this assignment relates to testimony tending to suggest defendant's involvement with persons in the drug traffic. The first time such testimony was given, defendant moved to strike. The motion was sustained and the trial judge instructed the jury that they were not to consider the testimony in their deliberations. Defense counsel moved for a mistrial and this motion was overruled. It is well established in our criminal law that if the court properly withdraws incompetent evidence from jury consideration and instructs the jury not to consider it, this cures error in its admission in all but exceptional circumstances. State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967); State v. Bronson, 10 N.C.App. 638, 179 S.E.2d 823 (1971). Whether the incompetent evidence should be deemed cured of prejudicial effect depends upon the nature of the evidence and circumstances of the individual case. State v. Aycoth, supra. Where the trial court has instructed the jury not to consider improper testimony, and where as in the instant case there is ample competent evidence from which the jury could find defendant guilty, a mistrial is not warranted. State v. Bronson, supra.

Also under this assignment of error, defendant maintains that the solicitor's reference to defendant's .25 caliber pistol as a "Saturday Night Special" constituted error. In view of the fact that defendant had already admitted ownership of said gun and had denied familiarity with "Saturday Night Specials," we do not see how this reference prejudiced defendant. The assignment of error is overruled.

By his fifth assignment of error, defendant contends the court erred (1) in failing to charge the jury on the defense of intoxication as requested by defendant and (2) in inadequately charging on intoxication as a defense. This assignment of error is without merit.

The record discloses that while the requested instruction was not given in the exact language of the request, it was given in substance. Where a defendant is entitled to requested instructions, the court does not have to give them verbatim; it is sufficient if the requested instructions are given in substance. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). We have carefully reviewed that portion of the court's charge on intoxication as a defense and believe that the charge fairly defined defendant's rights. A charge on intoxication as a defense in language substantially similar to the one given in the case at bar was found to be proper in State v. Hairston, 222 N.C. 455, 23 S.E.2d 885 (1943).

We have considered all of defendant's assignments of error and find them to be without merit.

No error.

CAMPBELL and MORRIS, JJ., concur.