State v. Casper

122 S.E.2d 805 (1961) 256 N.C. 99

STATE
v.
Gerald Thomas CASPER.

No. 433.

Supreme Court of North Carolina.

December 13, 1961.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Blanchard & Farmer, Raleigh, for defendant, appellant.

HIGGINS, Justice.

The defendant argues the court committed error in refusing to allow his motion to dismiss at the close of the evidence. He insists if he is not entitled to have his conviction reversed, he is entitled to a new trial (1) because of the erroneous admission of the photographs in evidence and (2) because of the court's failure to charge the jury that in no event could it return a verdict of guilty of murder in the first degree.

The evidence in the case fails to show any motive for the killing. Nevertheless, it does show by the defendant's admission that he and the deceased were in his vehicle outside her home in Raleigh about three o'clock in the morning. Both were drinking. He "passed out." He awoke in the vehicle about two hours later. His clothes and his vehicle were covered with blood. The body of the deceased was a few feet in front of his vehicle. He left the scene, went home, hid his clothes, washed the blood from the interior of the automobile, removed and concealed the bloodstained seat covers. The blood on his clothes, on what appeared to be the death weapon, and on the body of the deceased was of the same type.

The evidence does not disclose the distance between the home of the deceased in Raleigh and the place where her body was found on the outskirts. The evidence permits the inference the killing took place where the body was found because the cinder block apparently used as the weapon and other building materials were present at that place. There was no evidence that a cinder block was available as a weapon at the home of the deceased. At the same time, the blood in the vehicle may have been from a wound inflicted in the vehicle or outside, and the body carried in the vehicle, or the blood in the vehicle may have come from the defendant's bloody clothes.

While the case is not without its mysterious aspect, we think the evidence sufficient to require its submission to the jury under the applicable rules stated in: State v. Parrish, 251 N.C. 274, 111 S.E.2d 314; State v. Davis, 246 N.C. 73, 97 S.E.2d 444; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, and other cases therein cited.

The photographs introduced were identified as accurate representations. They were offered and admitted over general objection. They were properly admissible for the limited purpose of enabling the witness the better to explain and the court and jury the better to understand and interpret his testimony. If the defendant had requested that their admission be so limited, failure of the court to do so would have been error. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. However, when a general objection is interposed and overruled it will not be considered reversible error if the evidence is competent for any purpose. Rules of Practice in the Supreme Court, Rule 21, 221 N.C. 558; State v. Ham, 224 N.C. 128, 29 S.E.2d 449; State v. Tuttle, 207 N.C. 649, 178 S.E. 76; State v. McGlammery, 173 N.C. 748, 91 S.E. 371. The assignment of error based on the admission of the photographs, therefore, is not sustained.

Lastly, the defendant argues he should be granted a new trial for failure of the court to charge that in no event could he be convicted of murder in the first degree. The jury acquitted of the capital felony. Conviction of murder in the second degree rendered harmless any error with respect to a higher offense. State v. DeMai, 227 N.C. 657, 44 S.E.2d 218.

The evidence was sufficient to survive the motion for nonsuit. What it proved, or failed to prove, was for the jury. In the trial, therefore, in law there is

No error.