State v. Mitchell , 6 N.C. App. 755 ( 1969 )

171 S.E.2d 74 (1969) 6 N.C. App. 755

STATE of North Carolina
v.
David Leon MITCHELL.
STATE of North Carolina
v.
Charles McKINZIE.
STATE of North Carolina
v.
Mathew McKINZIE.

No. 695SC548.

Court of Appeals of North Carolina.

December 17, 1969.

Atty. Gen. Robert Morgan, by Trial Atty. Robert G. Webb, Wilson, for the State.

James L. Nelson, Wilmington, for defendant appellants.

MORRIS, Judge.

By assignment of error No. 1 defendants contend that it was error for the court to allow Police Lieutenant Wilson to testify with reference to not having taken any fingerprints from the pistol without first having found him to be an expert. This contention is without merit and is overruled. See State v. McClain, 4 N.C. App. 265, 166 S.E.2d 451 (1969). Defendants could not be prejudiced by the lack of evidence against them implicit in the State's admission that no fingerprints had been taken from the pistol.

Assignments of error Nos. 3, 4, 5, and 6 are concerned with questions pertaining to the McKinzie brothers. It is their contention that there was not sufficient evidence as to them to withstand motion for nonsuit and also that the court over-instructed the jury on the law of aiding and abetting thereby prejudicing their right to a fair determination by the jury. In view of the surrounding circumstances, there was sufficient evidence introduced by the State for the case against the McKinzie brothers to be submitted to the jury for consideration under the law of aiding and abetting. State v. McCabe; State v. Loften, 1 N.C.App. 461, 162 S.E.2d 66 (1968). The uncontroverted testimony of the State's witnesses placed the McKinzie brothers with Mitchell before, during and after the robbery and at the time Mitchell and the McKinzie brothers were arrested. We think the evidence, taken as a whole, does more than point the finger of suspicion toward the McKinzies. We hold that the evidence in this case was sufficient to withstand the motion for nonsuit.

In reviewing the charge of the court to the jury concerning aiding and abetting, we find no prejudicial error. The mere fact that the law pertaining to aiding and abetting was mentioned in more than one place in the charge is not undue emphasis and did not prejudice the defendants. These assignments of error are overruled.

Defendants next contend that their motion for a new trial should have been granted because of the improper argument of the solicitor. Although the record is silent as to what the solicitor said which defendants contend was improper, there is indication that the solicitor may have made observations from which it could be inferred that the defendants had not taken the stand to defend themselves. This, of course, would not be proper argument. However, if the trial court takes proper action to remove any prejudicial effect which might have resulted from the solicitor's remarks, such remarks will not be held to be reversible error. State v. Stephens, 262 N.C. 45, 136 S.E.2d 209 (1964). The record indicates that immediately upon objection by defendants' counsel to the solicitor's remarks, whatever they were, the court admonished the solicitor that he must not make inferential observations that would suggest that the defendants had not taken the stand. Also the court's charge to the jury contained a statement to the effect that the defendants had the absolute right not to take the stand and the fact that they did not could not be considered prejudicial to their case. We think that any prejudicial effect of any remarks the solicitor may have made was effectively removed by the court's statements at the time and later by the court's charge to the jury.

By assignment of error No. 9 defendants contend that it was error to refuse their motion to set aside the verdict as being contrary to the weight of the evidence. This contention is without merit and is overruled. Whether to grant such a motion is within the discretion of the trial judge and will not be disturbed in the absence of abuse of that discretion. State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); State v. Kirby, 4 N.C.App. 380, 166 S.E.2d 833 (1969). No abuse has been shown.

Defendants' last assignment of error is addressed to the refusal of the court to allow their motion in arrest of judgment. Defendants contend that the indictments were based on the hearsay testimony of two police officers, one of whom was not called to testify at the trial, and therefore subject to quashal. This contention is without merit and is overruled. An indictment is not subject to quashal on the ground that the testimony before the grand jury was based on hearsay. State v. Wall, 273 N.C. 130, 159 S.E.2d 317 (1968); State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785 (1968); State v. Levy, 200 N.C. 586, 158 S.E. 94 (1931).

Other assignments of error are not brought forward and are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. Defendants have had a fair trial, free from prejudicial error.

Affirmed.

MALLARD, C. J., and HEDRICK, J., concur.