State v. Williams

193 S.E.2d 478 (1972) 17 N.C. App. 31

STATE of North Carolina
v.
Alice Biggs WILLIAMS.

No. 722SC690.

Court of Appeals of North Carolina.

December 20, 1972.

Atty. Gen. Robert Morgan and Associate Atty. Gen. E. Thomas Maddox, Jr., for the State.

Milton E. Moore, Williamston, for defendant appellant.

MALLARD, Chief Judge.

Defendant sets forth 28 assignments of error based on 26 exceptions noted in the record and two exceptions not noted in the record.

In her brief, defendant presents three questions on appeal. Her first contention is that the trial judge committed prejudicial error by questioning several witnesses at the trial in a manner which constituted an expression of opinion as to the weight and sufficiency of the evidence in violation of G.S. § 1-180. While G.S. § 1-180 prohibits the court from expressing an opinion as to what has or has not been shown by the testimony of a witness, it is not improper for the court to ask questions for the purpose of obtaining a proper clarification and understanding of the testimony. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v. Colson, 274 N. C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780; State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950); State v. Case, 11 N.C.App. 203, 180 S.E.2d 460 (1971); State v. Huffman, 7 N.C.App. 92, 171 S.E.2d 339 (1969), cert. denied, 276 N.C. 328.

Viewing each of the challenged questions and remarks of the trial court in the light of the circumstances under which it was made, as we are bound to do, we are of the opinion that none of the judge's questions or remarks in this case amounted to an expression of opinion and that they did not tend to be prejudicial to the defendant. See State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951); State v. Byrd, 10 N.C.App. 56, 177 S.E.2d 738 (1970).

Defendant's second question in her brief is to the charge of the judge to the jury. Defendant contends that the judge incorrectly defined the term "general malice." However, defendant did not except to that portion of the charge, nor has defendant assigned that portion of the charge as error. In the brief, the only authority cited for this contention is "[Garland v. Penegar,] 235 N.C. 517 [70 S.E.2d 486]." The case at that page of Volume 235 of the North Carolina Reports has no bearing whatsoever on the case at hand. For failure to comply with Rules of Practice in the Court of Appeals Nos. 21 and 28, this contention is not properly presented.

In her third question, defendant contends that the trial court committed error by requiring the defendant to answer, on cross-examination, the question excepted to under the following circumstances:

"MR. GRIFFIN: You have been convicted of shooting a man before, haven't you?

MRS. WILLIAMS: Yes in 1970.

MR. GRIFFIN: Did you use this same gun to shoot him?

Objection Overruled, EXCEPTION NO. 21

MRS. WILLIAMS: No, I found this gun in the house later."

Conceding without deciding that the question excepted to may have been improper, we hold that under the circumstances of this case, the judge, in overruling the objection to it, did not commit prejudicial error.

We have considered all of defendant's assignments of error properly presented and are of the opinion that the defendant has had a fair trial free from prejudicial error. The question of defendant's guilt or innocence was resolved by the jury against her, and the evidence of the State supported the verdict.

No error.

BROCK and BRITT, JJ., concur.