State v. . Martin , 173 N.C. 808 ( 1917 )

First. The defendant, on cross-examination of Bryan Brackens, a witness for the State, asked him this question: "Did you not hear your father testify yesterday that he had said, if Ras Martin did not swear that Carl did it, he would send him (Ras) to the penitentiary?" On objection by the State, the question was excluded. It was plainly irrelevant and, besides, was mere hearsay. It did not appear that the witness Bryan Brackens had been influenced by his father to give false testimony, nor was there any evidence of any threats against him, and no connection was shown between him and Ras Martin, nor can we see how any threat against the other man affected the testimony of the witness in the least degree. It was pure hearsay, irrelevant and inadmissible. McElvey on Evidence, 165, 167, and 521; S. v. Barfield, 29 N.C. 299; S. v. Davis, 177 N.C. 483; S. v.Hargrave, 97 N.C. 457.

Second. It was competent to show that there were tracks leading from the crib to the place where the defendant lived, and that they corresponded with those of the defendant. S. v. Daniels 134 N.C. 641; S. v. Freeman,146 N.C. 615; S. v. Adams, 138 N.C. 688. The answer of the witness was that he had tracked the parties to their home, which was at first admitted, was afterwards excluded by the court, with a proper caution to the jury that they should not consider it. This was sufficient and cured the error, if one was committed. S. v. May, 15 N.C. 331; S. v. Collins, 93 N.C. 564.

Third. The question put to the witness E. L. Martin, as to his "offer of $20 to some one if he would swear that Carl Martin committed the crime," was substantially answered by the witness after the court had ruled out the question. The subsequent questions are not given, but the answers, stated in narrative from, indicate that the defendant made his questions most specific and covered the entire field of inquiry. It does not cure an error in excluding a question, if it is afterwards answered by another witness, but does so if answered fully by the same witness. S. v. Rollins,113 N.Y., 722; Young v. Gruner, ante, 622.

Fourth. The charge as to reasonable doubt was quite sufficient. An intelligent jury could not fail to understand that they must try the defendant by the evidence and acquit or convict him accordingly. The judge, in other parts of the charge, had told the jury that they must be fully satisfied "from the evidence" of the defendant's (810) guilt before they could convict him, and it was unnecessary that the quoted words should be repeated, if from the whole charge the law was correctly stated and there was nothing to mislead the jury as to what was meant. A similar objection was made at this term, in another case, and we overruled it. S. v. Killian, ante 792. But the part of the charge to which objection was taken does clearly refer to the evidence.

Fifth. If defendant thought that his contentions were not fully and correctly stated, he should have called the court's attention to it, and also asked for special instructions if those given were deemed not sufficient. Simmons v. Davenport, 140 N.C. 407; S. v. Blackwell,162 N.C. 672; S. v. Cox, 153 N.C. 638; S. v. Fogleman, 164 N.C. 458;Jeffress v. R. R., 158 N.C. 215. We are of the opinion, though, that there was a fair and impartial explanation of the evidence to the jury, with an accurate statement of the law arising thereon, and that the charge is not subject to any valid objection or criticism. The other exceptions are without any merit.

No error.

Cited: S. v. Spencer, 176 N.C. 715; S. v. Harden, 177 N.C. 581;Price v. Edwards, 178 N.C. 503; S. v. Love, 187 N.C. 39; S. v. Young,187 N.C. 700; S. v. Steele, 190 N.C. 510; S. v. McLeod, 198 N.C. 652;S. v. Jessup, 219 N.C. 623; S. v. Palmer, 230 N.C. 213.