State v. Wilborn

208 S.E.2d 232 (1974) 23 N.C. App. 99

STATE of North Carolina
v.
Collis Cecil WILBORN.

No. 7421SC690.

Court of Appeals of North Carolina.

September 18, 1974. Appeal Dismissed November 8, 1974.

Atty. Gen. Robert Morgan by Associate Atty. C. Diederich Heidgerd, Raleigh, for the State.

W. Warren Sparrow, Winston-Salem, for defendant appellant.

Appeal Dismissed by Supreme Court November 8, 1974.

BRITT, Judge.

By his two assignments of error, defendant contends that the court erred (1) in permitting Mrs. Wilborn to testify about an incident involving defendant that occurred some three years before the offenses for which defendant was being tried, and (2) in referring to the prior incident in the charge to the jury. We find no merit in the assignments.

On direct examination, over defendant's objections, Mrs. Wilborn testified: In August of 1970, she was working at Revco Drugs in Winston-Salem. On a Saturday night in that month, after she got off from work and went to her car in the parking lot, defendant shot at her with a 20-gauge gun. The bullet did not strike her, but went through the dress she was wearing and into the rear end of her car. Mrs. Wilborn displayed the dress she was wearing at the time of the previous shooting and pointed out a hole made by the bullet. After the incident, defendant and Mrs. Wilborn continued to live together but thereafter separated and were divorced.

In State v. Humphrey, 283 N.C. 570, 572, 196 S.E.2d 516, 518 (1973), we find:

"The general rule in North Carolina is that the State may not offer proof of another crime independent of and distinct from the crime for which defendant is being prosecuted even though the separate offense is of the same nature as the charged crime. State v. Long, 280 N.C. 633, 187 S.E.2d 47; State v. McClain, 240 N.C. 171, 81 S.E.2d 364; 1 Stansbury North Carolina Evidence § 91 (Brandis rev. 1973). However, such evidence is competent to show "the quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a change of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions.' State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241."

We hold that the challenged evidence was competent to show defendant's quo animo, or state of mind, at the time of the offenses involved here. It follows that the court did not err in referring to the prior incident in summarizing Mrs. Wilborn's testimony in the jury charge. The assignments of error are overruled.

No error.

HEDRICK and BALEY, JJ., concur.