State v. Battle , 4 N.C. App. 588 ( 1969 )

167 S.E.2d 476 (1969) 4 N.C. App. 588

STATE of North Carolina
v.
Lydia Ann Reid BATTLE.

No. 697SC159.

Court of Appeals of North Carolina.

May 28, 1969. Certiorari Denied July 10, 1969.

Atty. Gen. Robert Morgan, by Staff Atty. Christine Y. Denson, Raleigh, for the State.

Farris & Thomas, by Robert A. Farris, Wilson, for defendant appellant.

MORRIS, Judge.

Defendant brings forward several assignments of error, all of which we find to be without merit. The evidence taken in the light most favorable to the State, as we are required to do, State v. Bell, 270 N.C. 25, 153 S.E.2d 741, was clearly sufficient to withstand a motion for nonsuit.

The defendant argues that the trial judge erred in allowing the solicitor to ask leading questions. "The allowance of leading questions is a matter entirely within the discretion of the trial judge, and his rulings will not be reviewed on appeal, at least in the absence of a showing of abuse of discretion." Stansbury, N.C. Evidence 2d, § 31.

Defendant argues that the knife found by Daisy Bell Lucas some eight days after the incident in question was not admissible as evidence because it was not sufficiently identified. Luther Deans testified that State's exhibit No. 1 looked like the same knife that Johnny Witherspoon dropped when he got out of the car that night. There was evidence that the defendant took possession of this knife. Cornel High stated that the State's exhibit No. 1 looked like the knife he found, and which the defendant took out of his hand. Daisy Bell Lucas stated that State's exhibit No. 1 looked like the knife she found under the bush. In order to be admissible into evidence, testimony need not show, specifically, that this was the weapon used in the crime. It is sufficient if there is evidence tending to show that this weapon was used. Stansbury, N.C. Evidence 2d, § 118; State v. Macklin, 210 N.C. 496, 187 S.E. 785. This assignment of error is overruled.

The next question relates to exceptions taken to the testimony of Sheriff G. O. Womble concerning statements made to him by Daisy Bell Lucas, Kinzie (Cokey) Allen, Emma Jane Crumel, and Curtis Vick during the course of his investigation. When Sheriff Womble first started to testify as to statements made to him by Daisy Bell Lucas, the trial judge correctly instructed the jury that this testimony was not to be considered as substantive evidence, but only as evidence corroborating Daisy Bell Lucas, if, in fact, the jury found that this evidence did corroborate her. When Sheriff Womble began to testify as to what the other witnesses had told him during the course of his investigation, the trial judge told the jury that this same instruction would apply, but he did not repeat the instruction in full. We note that the defendant did not request that this testimony be restricted; therefore, the trial judge was not required to restrict the evidence. See Humphries v. Queen City Coach Co., 228 N.C. 399, 45 S.E.2d 546, where the Court stated, "The evidence to which these exceptions relate is competent for purpose of corroboration, and the record fails to show that appellant asked, at the time, that its purpose be restricted. In such case the admission of the statements will not be ground for exception. Rule 21 of Rules of Practice in the Supreme Court, 221 N.C. 544." Also see State v. Petry, 226 N.C. 78, 36 S.E.2d 653; State v. Perry, 226 N.C. 530, 39 S.E.2d 460; Harris v. Burgess, 237 N.C. 430, 75 S.E.2d 248; and State v. Lee, 248 N.C. 327, 103 S.E.2d 295.

The testimony of Sheriff Womble relating to what the witnesses told him during his investigation of the crime, and the testimony of the witnesses themselves was different in some respects. However, we do not think this variance was fatal. The testimony of Sheriff Womble was substantially the same as the direct testimony of the witnesses. His testimony did not tend to impeach the testimony of the witnesses whom he was corroborating; therefore, the case of State v. Bagley, 229 N.C. 723, 51 S.E.2d 298, is distinguishable. A slight variance in the direct testimony and the corroborating testimony will not render the latter inadmissible. The credibility of the testimony was for the jury. State v. Walker, 226 N.C. 458, 38 S.E.2d 531; and State v. Case, 253 N.C. 130, 116 S.E.2d 429.

Defendant has taken several exceptions to the instructions given to the jury by the trial court. He argues that the trial court erred in charging the jury as to the presumptions raised by the use of a deadly weapon because the State failed to prove that the defendant used a deadly weapon or had in fact killed the deceased. We disagree. The defendant was seen with Witherspoon's knife on the night in question. She was seen beating Witherspoon while he was lying on the ground. Witherspoon appeared to be dying when the defendant left him, and it appeared that he had been stabbed in the neck. Kinzie Allen testified that the defendant came to the back of the house after the fight was over with a knife in her hands and stated, "I cut the * * * s. o. b.'s throat." We think that the trial court correctly charged the jury on the presumptions raised by a killing with a deadly weapon. 4 Strong, N.C. Index 2d, Homicide, § 14, p. 207. The court correctly charged the jury on the question of provocation. 4 Strong, N.C. Index 2d, Homicide, § 6, p. 197. The trial court did not err in failing to charge the jury on the issue of self-defense. The evidence shows that the deceased slapped the defendant. But, following this, the defendant stated that she was "going to get" the deceased. Deceased asked Roy Lucas not to let the defendant hurt him. The defendant then followed the deceased as he left the yard, and then back into the yard. She then came up behind the deceased while he was behind a bush and hit him over the head with a jar. She was seen hitting the deceased with a brick. One witness stated that the deceased was trying to get up, and another stated that he was not moving. Both stated that the defendant was beating him. All the evidence shows that after the defendant was slapped by the deceased, she became the aggressor and the deceased was attempting to avoid a confrontation. The State's evidence fails to disclose that the defendant was in real or apparent apprehension of great bodily harm. The defendant offered no evidence. "In other words, there must be evidence from which the jury may find that the party assailed believed at the time that it was necessary to kill his adversary to prevent death or great bodily harm, before he may seek refuge in the principle of self-defense, and have the jury pass upon the reasonableness of such belief." State v. Rawley, 237 N.C. 233, 74 S.E.2d 620. Also, see State v. Deaton, 226 N.C. 348, 38 S.E.2d 81. The trial court did not err in stating the contentions of the parties. The trial court's statement of the contentions of the parties need not be of equal length, City of Durham v. Eastern Realty Co., 270 N.C. 631, 155 S.E.2d 231, although, in the present case, they were approximately the same length. We find the charge to be fair and impartial, and in compliance with G.S. § 1-180. If the defendant desired that further or different statements of her contentions be presented to the jury, she should have called this to the court's attention in apt time. Peterson v. McManus, 210 N.C. 822, 185 S.E. 462.

In the trial below we find

No error.

MALLARD, C. J., and CAMPBELL, J., concur.