State v. Case , 253 N.C. 130 ( 1960 )

116 S.E.2d 429 (1960) 253 N.C. 130

STATE
v.
Robert Lee CASE.

No. 147.

Supreme Court of North Carolina.

October 12, 1960.

T. W. Bruton, Atty. Gen., Glenn L. Hooper, Jr., Asst. Atty. Gen., for the State.

O. A. Warren, Gastonia, for defendant Case.

DENNY, Justice.

The appellant's first assignment of error is to the admission of testimony of the State's witness Palmer as to what Mrs. Black told him after he picked her up and while they were on the way to the Lowell police station; and, that the court further erred in stating to the jury that "Corroborate means to bolster up or to strengthen. It is not substantive testimony—that is, testimony proving any fact within itself."

Mr. Palmer testified that Mrs. Black stated to him "that she had been tied up to a tree, and had been given fifteen seconds to live or to get loose—if she didn't they'd come back and kill her."

Slight variances in corroborating testimony do not render such testimony inadmissible. State v. Walker, 226 N.C. 458, 38 S.E.2d 531; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84. As to the meaning or effect of corroborating testimony, the definition of the word "corroborate" is given in Black's Law Dictionary, 3rd Edition, at page 444, as meaning "To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence," citing Lassiter v. Seaboard Air Line R. Co., 171 N.C. 283, 88 S.E. 335, 337.

In the last cited case our Court said: "The approved definition of the verb ``corroborate' is: ``(1) To make strong or to give additional strength to; to strengthen. (2) To make more certain; to confirm; to strengthen.'"

In the instant case, while the court did instruct the jury at the time the above evidence was admitted that this evidence was offered only as corroborating the testimony of Mrs. Black, the court did not add the usual instruction, to wit, "if it does so corroborate her testimony." On the other hand, there was no intimation by the court as to whether or not in its opinion the testimony of the witness did corroborate the testimony of Mrs. Black. It is always a question for the jury to determine whether or not the testimony of one witness does corroborate the testimony of another witness. Lassiter v. Seaboard Air Line R. Co., supra. This assignment of error is overruled.

Assignment of error No. 2 is based on exceptions Nos. 13 and 14. These exceptions are directed to the testimony of H. J. Auten as to the statements made by the defendant Shedd in the presence of the defendant appellant, Robert Lee Case, without first determining whether the defendant Case had denied or admitted the statements of the defendant Shedd.

It appears from the record that the only statement Shedd made to Auten while Shedd and Case were together, was that "he (Shedd) was with Case."

In the case of State v. Bryant, 235 N.C. 420, 70 S.E.2d 186, 188, this Court, speaking through Winborne, J., now C. J., said: "* * * statements made in the presence and hearing of the accused implicating him in the commission of a crime, to which he makes no reply, are competent against him as implied admissions. State v. Suggs, 89 N.C. 527; State v. Wilson, 205 N.C. 376, 171 S.E. 338; State v. Hawkins, 214 N.C. 326, 199 S.E. 284; State v. Gentry, 228 N.C. 643, 46 S.E.2d 863; State v. Sawyer, 230 N.C. 713, 55 S.E.2d 464; State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349." This assignment of error is overruled.

These defendants were sent to Dorothea Dix Hospital in Raleigh for examination, as provided by law, to determine whether or not they were mentally competent to stand trial upon the charge on which they had been indicted.

Assignment of error No. 3 is based on exception No. 28 which challenges the testimony of Dr. Andrew L. Laczko, a psychiatrist on the staff of the Dorothea Dix Hospital, on the ground that the testimony about to be offered would not be admissible as substantive evidence. Thereafter, Dr. Laczko, without further objection, testified that in the course of his examination of the defendant Shedd that Shedd told him, "``I am being charged with rape, kidnapping and possibly highway robbery.' As for the events that took place, he stated that on a Sunday—he did not specify the date—that he and his uncle, whose name was mentioned as Mr. Case—proceeded to a woman's house, claiming he did not know the location of the house as far as the postal address is concerned. He said without applying any force all three of them, he, Mr. Case, and this lady returned to the car; and Shedd stated to me that he had sexual intercourse with this lady without forcing her to do so."

The above statements appear to have been made voluntarily by Shedd, and no objection having been interposed to the admission thereof, when admitted they were competent as against him. Where testimony incompetent as to one defendant is admitted without objection and without request that its admission be limited, an exception thereto will not be sustained. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. Hendricks, 207 N.C. 873, 178 S.E. 557; Rules of Practice in the Supreme Court, Rule 21, 221 N.C. at page 558.

No objection or exception was interposed to the admission of Dr. Laczko's testimony with respect to what Shedd told him, by either defendant; neither was there any request by the defendant Case that such evidence be admitted only as against Shedd. It would have been error to admit Shedd's statement or statements against Case, had he requested that they be limited as against Shedd only.

Dr. Laczko and Dr. Walter A. Sykes were offered as witnesses by the State with respect to the mental capacity of each of the defendants. It was stipulated by counsel for Shedd and counsel for the appellant Case that these physicians were experts in the field of psychiatry. Both of them testified that they examined the defendants and that Shedd was on the borderline of intelligence; that Case had an I.Q. of 82, "which is within the range of a dull, normal intelligence." Each of these doctors testified he had an opinion satisfactory to himself as to whether or not each of the defendants knows the difference between right and wrong, and that in his opinion each of the defendants knew the difference between right and wrong. Evidence with respect to the I.Q. of the appellant Case was brought out on cross-examination by the appellant's counsel. Certainly, the evidence of these experts with respect to the mentality of the defendants was admissible as substantive evidence. State v. Grayson, 239 N.C. 453, 80 S.E.2d 387; State v. Litteral, supra.

Even if the statements made by Shedd to Dr. Laczko, in which he referred to his co-defendant Case, had been duly objected to by the defendants and an exception duly entered, in light of the admissions made by both defendants theretofore to Officer Auten, the admission of such statement or statements would not in our opinion be sufficiently prejudicial to warrant a new trial. Furthermore, Case is in no position to challenge the admission of this testimony on the ground of the physician-patient relationship existing between the witness and Shedd. Exception No. 28 is overruled.

By exceptions Nos. 68, 69, 70, 71 and 74, the appellant attacks the court's review of the testimony of the psychiatrists. The evidence reviewed was evidence admitted without objection. Moreover, much of this evidence reviewed by the court below was brought out by the appellant's counsel on cross-examination of the psychiatrists. "Inadvertence in stating the contentions or in recapitulating the evidence must be called to the attention of the court in time for correction. After verdict the objection comes too late." State v. Holder, 252 N.C. 121, 113 S.E.2d 15, 16; State v. Saunders, 245 N.C. 338, 95 S.E.2d 876; State v. Stone, 241 N.C. 294, 84 S.E.2d 923; State v. Ritter, 239 N.C. 89, 79 S.E.2d 164; State v. Lambe, 232 N.C. 570, 61 S.E.2d 608. There is no merit in these exceptions and they are overruled.

The appellant's ninth assignment of error is directed to exceptions Nos. 47, 49, 52, 53, 54, 55, 57, 58, 59 and 62, and each one of these exceptions is directed to the phrase used by the court in stating the contentions of the State, to wit, "The State has offered evidence in this case, from which it argues and contends that it tends to show (and does show)." After each of these portions of the charge, there followed a recapitulation of certain evidence, upon which the State relied and contended that such evidence tended to show and did show certain things.

While in our opinion it is preferable for the court in stating the contentions of the State or of a defendant to say that the State or the defendant argues and contends "that the evidence tends to show," without adding the words "and does show," however, when the phrase used by the court, and to which the defendant objects, is read in context, it shows in our opinion that the court was merely giving the contentions of the State to the effect that the State contends the evidence does show thus and so and was not expressing an opinion on the part of the court as to what the evidence did show. Moreover, nothing appears in the appellant's brief or in the record to indicate that the trial judge emphasized the words "and does show" in any manner so as to disassociate them from the context of the "contention phrase," to wit, "that the State argues and contends that this evidence tends to show and does show." This assignment of error is overruled.

The tenth assignment of error is based on exceptions Nos. 50 and 51. These exceptions were taken to the court's review of the evidence of Mr. C. G. Black in which Mr. Black testified that Case had been to his home some twelve or eighteen months previously while Black was working near his garage; that Case asked him if could get some water and Mr. Black replied, "Yes, Sir, help yourself, there is a spigot right there." Mr. Black further testified, "He (Case) was on the roads working as a trusty, I believe." Defendant's counsel, on cross-examination, examined Mr. Black at some length about Case having been on the chain gang. None of the evidence with respect to the previous service on the roads, reviewed by the court in recapitulating the evidence to the jury, was objected to by appellant when it was admitted; and, as pointed out above, much of the evidence to which the appellant now objects as having been inadmissible and prejudicial was brought out by his own counsel in cross-examining Mr. Black. This assignment of error is without merit and is overruled.

The record before us contains many additional assignments of error based on numerous exceptions which we have not discussed. However, we have carefully examined and considered these additional assignments of error and in our opinion they present no error sufficiently prejudicial to justify us in awarding a new trial.

The verdict and judgment of the court below will be upheld.

No error.