State v. Hodges

249 S.E.2d 371 (1978) 296 N.C. 66

STATE of North Carolina
v.
Marion Uriah HODGES, Jr.

No. 5.

Supreme Court of North Carolina.

November 28, 1978.

Rufus L. Edmisten, Atty. Gen. by Kaye R. Webb, Associate Atty. Gen., Raleigh, for the State.

W. B. Carter, Washington and Clarence W. Griffin, Williamston, attorneys for defendant-appellant.

BRANCH, Justice.

We first consider whether the Court of Appeals correctly decided that there was no error in the rulings of the trial judge which sustained objections to questions relating to defendant's acts of self defense.

In this connection, the record discloses the following:

Q. Mr. Hodges, why did you shoot Mr. Harris?

A. Well, I was afraid of him and I knew he was going to hurt me.

Objection of the District Attorney sustained.

Q. Can you tell us why you shot Mr. Harris?

A. I knew he was going to hurt me.

Objection of District Attorney sustained.

I was afraid of him because I knowed he had a bad reputation. He had a reputation for being dangerous . . .

Q. I ask you, Mr. Hodges, why you were afraid of him.

Objection by the District Attorney sustained.

The witness was permitted to make the following answer to the court reporter in the absence of the jury: "because he had a dangerous reputation. He assaulted his brother, was charged with assaulting his brother and two or three more in the neighborhood."

Defendant contends that these rulings precluded a showing that he killed his adversary under circumstances which caused defendant to reasonably believe that it was necessary to shoot in order to save himself from death or great bodily harm in the lawful exercise of his right of self-defense.

We are of the opinion that the trial judge erred by sustaining the objections to the questions which sought to present evidence that defendant acted because of a reasonable apprehension of death or great bodily harm when he shot and killed Kenneth Harris. See, State v. Champion, 222 N.C. 160, 22 S.E.2d 232. However, we agree with the conclusion of the majority of the Court of Appeals that the rulings of the trial judge did not result in prejudicial error to defendant.

In State v. Edmondson, 283 N.C. 533, 196 S.E.2d 505, under virtually identical circumstances, this Court answered the question posed by this assignment of error adversely to the defendant. There, Justice Lake, speaking for the Court, stated:

The third assignment of error is to the court's sustaining objections to the defendant's testimony as to whether Jones overheard the defendant's statement by telephone to Scott as to the reason why the defendant did not like to ride around with Jones. It appears from the record that the solicitor's objections were sustained after the witness had answered in the presence of the jury and the jury was not instructed to disregard the testimony. Thus, as a practical matter, the defendant had the benefit of the evidence. Furthermore, without objection, the defendant subsequently testified that when he and his companions arrived at the scene of the shooting, in response to an inquiry by the deceased, the defendant stated to the deceased exactly the same reason for not wanting to ride around with him. This cured any error which there may have been in the rulings of the court now assigned as error. "The exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import, or the evidence is thereafter admitted, or the party offering the evidence has the full benefit of the fact sought to be established thereby by other evidence." Strong, N.C. Index 2d, Appeal and Error, § 49, and numerous cases there cited.

Here the record indicates that, with one exception, the trial judge did not sustain the State's objections until defendant had answered the questions in the presence of the jury. Thus, as a practical matter defendant had the benefit of this evidence, and there was no motion to strike or instruction to the jury to disregard defendant's answers. The answers which the jury heard and the one response that was placed in the record in the jury's absence all tended to show that deceased had a reputation of being a dangerous man and that defendant was aware of that reputation. Moreover, similar testimony was admitted without objection. Finally, we note that the rulings of the trial judge in no way indicated an opinion as to the defendant's guilt or innocence or as to the weight and credibility of the evidence offered. Under the particular circumstances of this case, we hold that the Court of Appeals correctly decided that these rulings by the trial judge did not result in prejudicial error. The facts in instant case, as in Edmondson, do not present the question of whether the trial judge's erroneous rulings would have been prejudicial absent the admission of evidence of like import without objection. We reserve decision on this question until presented by a proper case.

Defendant assigns as error the failure of the trial judge to grant his motion for judgment of nonsuit as to the charge of murder in the second degree.

Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69; State v. Duboise, 279 N.C. 73, 181 S.E.2d 393.

In instant case, all the evidence tends to show that defendant intentionally inflicted a wound with a deadly weapon which caused deceased's death. Such evidence raises inferences of an unlawful killing with malice which are sufficient to permit, but not require, the jury to return a verdict of murder in the second degree. State v. Jackson, 284 N.C. 383, 200 S.E.2d 596; State v. Rummage, 280 N.C. 51, 185 S.E.2d 221. Defendant's evidence of self defense or that he killed in a heat of passion upon sudden provocation are matters of excuse and mitigation which should be weighed against the raised inferences of unlawfulness and malice. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306.

We hold that there was ample evidence to permit the jury to draw reasonable inferences that defendant unlawfully and with malice killed Kenneth Harris on 22 November 1976.

Defendant argues that the Court of Appeals erred in finding no error in the trial judge's ruling which admitted, over objection, the testimony of Mrs. Kenneth Harris concerning a telephone conversation with defendant.

This record indicates that the witness had previously testified at some length, without objection, concerning this telephone conversation. When she was later recalled, she, in substance, repeated the same testimony and added that she told defendant that she considered his statement a threat. She also expanded her original testimony by stating that she had engaged in prior telephone conversations with defendant during which she recognized his voice. It was at this point that defendant finally lodged a general objection.

Clearly, all of the testimony to which defendant objected was not inadmissible since a substantial portion of it had been previously admitted without objection. Defendant failed to specify the portion of the testimony to which he directed his objection.

In State v. Ledford, 133 N.C. 714, 45 S.E. 944, this Court considered a question similar to the one presented by this assignment of error and stated:

The objections are general, and the rule is well settled that such objections will not be entertained if the evidence consists of several distinct parts, some of which are competent and others not. In such a case the objector must specify the ground of the objection, and it must be confined to the incompetent evidence. Unless this is done, he cannot afterwards single out and assign as error the admission of that part of the testimony which was incompetent.

See also, Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; Nance v. Telegraph Co., 177 N.C. 313, 98 S.E. 838.

In instant case, defendant's objection to the testimony of this witness is to portions of the evidence en masse. He failed to point out the portion of the evidence which was objectionable. Defendant's failure to so do waived his right to assign as error the portion of the testimony which he contended was incompetent.

Defendant assigns as error the trial court's instruction to the jury as to the State's right to rebut evidence of deceased's character for violence. The State presented evidence of deceased's good character and evidence that he was neither a dangerous nor violent man. Defendant did not object to the introduction of any of this evidence. Judge Small instructed the jury that, "The State may rebut the defendant's evidence of deceased's character for violence by evidence of the good character of Kenneth Harris for peace and quiet." The instruction correctly stated the law. State v. Johnson, 270 N.C. 215, 154 S.E.2d 48; State v. Champion, supra. Defendant contends, however, that this instruction was improper as the State introduced no evidence of Kenneth Harris's reputation for peace and quiet. Although some support may be found in Johnson and Champion for defendant's contention, we think that defendant's reliance upon these cases is misplaced. In Johnson and Champion, the defendant timely objected to the questioned evidence. Here defendant failed to object.

It is well established that, nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered. State v. Jones, 280 N.C. 322, 185 S.E.2d 858; State v. Lowery, 286 N.C. 698, 213 S.E.2d 255, modified 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1206, and cases cited therein.

This assignment of error is overruled.

Defendant assigns as error the trial court's instruction as to the law and as to the weight to be given to a statement defendant made to a deputy sheriff prior to trial. The jury was instructed that, "If you find the defendant made the statement, then you should consider all the circumstances under which it was made in determining whether it was a truthful statement, and the weight that you will give to it." Defendant contends that the trial judge should have given the instruction set out in State v. Edwards, 211 N.C. 555, 191 S.E. 1, to the effect that the whole of a confession must be taken together, considering those portions favorable to as well as those portions against the defendant. Edwards differs from this case in that in Edwards the trial judge instructed the jury to take the defendant's exculpatory statements "with a grain of salt." The Edwards instruction was not warranted in the instant case because here the trial judge did not instruct the jury to weigh the statement in favor of either party.

We find no error in the instructions given. Moreover, the record shows no exception 14 which was the basis for the assignment of error concerning the weight to be given the statement. Such assignment of error is, therefore, not to be considered on appeal. Rule 10, Rules of Appellate Procedure.

We have carefully examined the remaining assignments of error and this entire record. Our examination discloses nothing which would warrant disturbing the verdict of the jury or the judgment entered thereon.

AFFIRMED.

BRITT, J., did not participate in this decision.