State v. Davis

211 S.E.2d 849 (1975) 24 N.C. App. 683

STATE of North Carolina
v.
Lawrence DAVIS.

No. 7415SC940.

Court of Appeals of North Carolina.

February 19, 1975.

Atty. Gen. Rufus L. Edmisten, by Associate Attorney Davis S. Crump, for the State.

B. Frank Bullock, Durham, for defendant appellant.

MORRIS, Judge.

In his first assignment of error defendant maintains the trial judge violated G.S. § 1-180 by asking witnesses certain questions concerning the incident and a later confrontation between the prosecuting witness, Herman Long, and defendant. Defendant asserts that by asking these questions, the trial judge took on the role of advocate in the trial, which was highly prejudicial to the defendant. We find defendant's argument unpersuasive. A careful examination of the questions asked by the court indicates that they were entirely objective and innocuous. Clearly, the trial judge did not become an advocate in favor of the State. Furthermore, the questions related to matters of minor importance, having little relation to the principal issue in this case. Finally, defendant has failed to show how he was prejudiced by these questions. It must appear with ordinary certainty that the rights of a defendant have in some way been prejudiced by the conduct of the trial judge, before such conduct can be treated as reversible error. State v. Blue, 17 N.C.App. 526, 195 S.E.2d 104 (1973), and cases cited therein.

Defendant's second and fourth assignments of error relate to the denial of his motions for nonsuit at the close of the State's evidence and at the close of all the evidence. "By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury." State v. Mull, N.C.App., 211 S.E.2d 515 (1975), citing State v. McWilliams, 277 N.C. 680, 687, 178 S.E.2d 476 (1971). Upon motion to nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom, and nonsuit should be denied when there is sufficient evidence, direct, circumstantial or both, from which the jury could find that the offense charged has been committed and that defendant committed it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968), and cases cited therein. The record contains plenary evidence that the prosecuting witness was peacefully leaving defendant's premises when defendant approached him and suddenly struck him in the mouth. For the purpose of nonsuit, it is immaterial that the State's evidence was controverted by defendant's assertion that he merely was using reasonable force to remove a trespasser from his premises. The credibility of the evidence was for the jury. As there was substantial evidence of each of the elements of the offenses charged, defendant's motion for nonsuit was properly denied.

We have carefully reviewed defendant's remaining assignments of error and find them to be without error. Defendant received a fair trial free from prejudicial error.

No error.

PARKER and HEDRICK, JJ., concur.