State v. Little

209 S.E.2d 749 (1974) 286 N.C. 185

STATE of North Carolina
v.
Lawrence Robert LITTLE.

No. 54.

Supreme Court of North Carolina.

November 26, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Lester V. Chalmers, Jr., Raleigh, for the State.

John Richard Newton, Wilmington, for defendant appellant.

MOORE, Justice.

Defendant in his brief brings forward three assignments of error numbered first, sixth, and ninth. All assignments of error and exceptions not discussed in the brief are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783 (G.S. 4A, Appendix I(1)); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955).

The first assignment of error is as follows:

"1. The lower Court erred in admitting irrelevant testimony.

EXCEPTIONS NOS. 1(R p 10), 2(R p 11), 3(R pp 11, 12), 4(R p 12), 5(R p 13), 6(R p 14), 7(R p 15), 8(R p 16), 9(R p 17), 10 (R p 19), 13(R p 22), 16(R p 25), 17(R p 26), 20(R p 28), 21(R p 29)."

This assignment of error fails to comply with the Rules of this Court in that it fails to show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. Rules 19(3) and 21, Rules of Practice in the Supreme Court, supra; State v. Kirby, supra; In re Will of Adams, 268 N.C. 565, 151 S.E.2d 59 (1966).

As stated in In re Will of Adams:

"Rules 19 and 21, Rules of Practice in the Supreme Court, 254 N.C. 783, 795, 803, require that asserted error must be based on an appropriate exception, and must be properly assigned. We have repeatedly said that these rules require an assignment of error to show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. Samuel v. Evans, 264 N.C. 393, 141 S.E.2d 627; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829. The rules of practice in this Court are mandatory and will be enforced. Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E.2d 313; Balint v. Grayson, 256 N.C. 490, 124 S.E.2d 364; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.. . ."

Defendant's first assignment of error is ineffectual to bring up for review by this Court any part of the trial judge's rulings as to the admission of evidence. Despite the failure of defendant to perfect his appeal in conformity with the Rules, since a life sentence is involved we have elected to consider the testimony that he seeks to attack. The conversations defendant had with the various witnesses, the admission of which he alleges was error, indicated his hatred for blacks and for Jervay who owned the black newspaper, the office of which was located in the building that was damaged by the explosion. These conversations further indicate that defendant had the dynamite that he planned to use and did in fact use in dynamiting the building. Such testimony was competent to show the requisite intent or state of mind and the motive for the commission of the crime, as well as the commission of the crime itself.

"In criminal cases every circumstance that is calculated to throw light upon the supposed crime is relevant and admissible if competent. . . . It is always competent to show a motive for the commission of the crime though motive does not constitute an element of the offense charged. To this end, evidence or threats made by defendant, or ill will existing between him and the victim of the offense, is competent." 2 Strong, N.C. Index 2d, Criminal Law § 33 (1967). State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506, cert. den. 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044 (1965); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954).

Defendant's first assignment of error is overruled.

Defendant next assigns as error the trial court's refusal to let Officer Page testify regarding whether Ben Chavis was in the area on 28 May 1973. This assignment is without merit. Assuming, without deciding, that the question was competent, defendant has failed to show the answer the witness would have given had he been permitted to answer. In State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972), this Court said: "The record does not show what the State's witnesses or defendant would have said had they been permitted to answer the questions. Therefore we cannot know whether the rulings were prejudicial. The burden is on appellant not only to show error but to show prejudicial error. [Citations omitted.]"

Finally, defendant's ninth assignment of error is as follows: "The lower court erred in its definition of malice in its charge." Again, this assignment of error fails to meet the requirements of our Rules. "Assignments of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant's contention as to what the court should have charged." State v. Kirby, supra. Accord, State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crews, supra. The trial court instructed the jury that in order to convict the defendant they must be satisfied beyond a reasonable doubt of the following:

"First, that the defendant damaged the building on South Seventh Street which was owned by Mr. T. C. Jervay and used by him as an office for the Wilmington Journal.

"Second, that the defendant did this with an explosive or incendiary device of some sort. And I charge you that among other things, dynamite is an explosive device within the meaning of the statute.

"Third, that the defendant acted wilfully, that is intentionally and without justification or excuse.

"Fourth, that the defendant acted maliciously, that is [with] animosity, hatred or ill will.

"And fifth, that the real property was at that time occupied by some person, which in this instance if occupied would have been by Mr. Richard Warren and his wife.

"It is necessary for me to define for you some of these terms I have used. I have already defined the term malicious to mean with animosity, hatred or ill will."

Defendant contends that the trial court's definition of the word "maliciously" was insufficient. He contends that the charge must not only set out that the act was maliciously done but that the act was maliciously done with ill will, animosity, or a preconceived revenge toward the owner. In the present case, the court charged the jury that in order to convict it must find beyond a reasonable doubt that defendant damaged the building of Mr. Jervay with an explosive, that defendant acted wilfully and maliciously, and that the building was occupied at the time. In State v. Conrad, 275 N.C. 342, 168 S.E.2d 39, (1969), the defendant was convicted of malicious damage to an occupied building, a violation of G.S. § 14-49.1, the same statute that defendant is charged with violating in this case. In affirming Conrad's conviction, Justice Higgins speaking for the Court said: "The gist of the offense . . . is malicious injury or damage to property, real or personal, by the use of high explosives. The word ``malicious' as used in the statute connotes a feeling of animosity, hatred or ill will toward the owner, the possessor, or the occupant."

In the present case, there was ample evidence of defendant's animosity, hatred, and ill will towards T. C. Jervay, the owner of the building, towards blacks generally, and towards the Wilmington Journal, a black newspaper, one of the occupants of the building. The trial court charged that the act of dynamiting the building must have been done maliciously and then defined maliciously exactly as set out in State v. Conrad, supra. This assignment is without merit.

A careful review of the record discloses that defendant had a fair and impartial trial free from prejudicial error.

No Error.

BOBBITT, C. J., not sitting.