State v. Cox

157 S.E.2d 142 (1967) 271 N.C. 579

STATE
v.
John Earl COX, Jr.

No. 247.

Supreme Court of North Carolina.

October 11, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.

T. O. Stennett, Charlotte, for defendant.

PER CURIAM.

Defendant assigns error in that the court overruled his objection to the State's witness using a blackboard sketch to illustrate his testimony.

"A witness may use a map or diagram, a photograph or a model of a place or a person or an object, to illustrate his testimony and make it more intelligible to the court and jury. It must of course be identified as portraying the scene with sufficient accuracy." Stansbury: North Carolina Evidence, Witnesses, Sec. 34, p. 64.

Admittedly, the State had not sufficiently identified the sketch when the officer was asked to use it to illustrate his testimony. However, the sketch had been drawn upon the blackboard in view of the jury, without objection, and when objection was interposed the court properly instructed the jury that it was to be used for illustrative purposes and was not to be considered as substantive evidence. All of the State's evidence was to the effect that the alleged crime took place in a wooded area near E. Ninth Street in the City of Charlotte. There were six eyewitnesses who placed the defendant there, and defendant admitted in his own testimony that he was in the area with the prosecuting witness at the time the crime was alleged to have taken place. It is apparent that any confusion or prejudice that might have been caused by the sketch was removed by cross-examination of the witness.

"* * * The admission of incompetent evidence will not be held prejudicial when its import is abundantly established by other competent testimony." Bullin v. Moore, 256 N.C. 82, 122 S.E.2d 765.

We find no prejudicial error as to this assignment of error.

It was not error to allow the prosecuting witness to testify as to what she told the officers when they arrived on the scene immediately after defendant was taken into custody.

In the case of Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757, this Court stated:

"For a declaration to be competent as part of the res gestae, at least three qualifying conditions must concur: (a) The declaration must be of such spontaneous character as to be a sufficient safeguard of its trustworthiness; that is, preclude the likelihood of reflection and fabrication; * * * instinctive rather than narrative; * * * (b) it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom; * * * and (c) must have some relevancy to the fact sought to be proved."

And in 29 Am.Jur.2d, Evidence, § 719, p. 788, we find the following:

"Statements of the victim of a sex crime made within a few minutes after commission of the offense will ordinarily be regarded as part of the res gestae, assuming, of course, the absence of circumstances indicating a lack of spontaneity."

Here, there was evidence that the 12-year-old prosecutrix was "hysterical and crying" when she made the challenged statement immediately after the commission of the offense and at the scene of the offense. Her statement was a spontaneous declaration of a relevant fact which was practically a part of the occurrence.

We have considered the other assignments of error and prejudicial error has not been made to appear.

No error.