State v. Dickens

181 S.E.2d 257 (1971) 11 N.C. App. 392

STATE of North Carolina
v.
Herman DICKENS.

No. 717SC337.

Court of Appeals of North Carolina.

May 26, 1971.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Henry T. Rosser, for the State.

Howard A. Knox, Jr., Rocky Mount, for defendant appellant.

MORRIS, Judge.

Appellant does not bring forward and argue assignments of error Nos. 1, 3, 5 and 9. Those not brought forward and argued are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina; Gibson v. Montford, 9 N.C.App. 251, 175 S.E.2d 776 (1970).

By assignment of error No. 2, defendant argues that the court erred in failing to exclude testimony of Deputy Sheriff E. H. Sawyer, Jr., to the effect that he "saw the X-ray that showed where the bullet stopped." The court sustained defendant's objection as to what it showed and overruled it as to seeing the Xray. Defendant argues that the court should have instructed the jury to disregard the testimony. The record does not reveal the question posed by the solicitor, nor whether objection was made thereto. We can only assume that the answer to a part of which defendant has excepted was partially responsive and partially unresponsive. Defendant interposed no motion to strike that part of the answer stating what the X ray showed, nor did he request the court to instruct the jury not to consider it. His objection now to the court's failure to instruct the jury comes too late. State v. Knight, 247 N.C. 754, 102 S.E.2d 259 (1958). In any event the evidence was not prejudicial. Defendant admitted shooting the prosecuting witness, and she testified, without objection, to the severity of the injury sustained, the length of time she remained in the hospital, and the treatment she received. This assignment of error is without merit.

Defendant next argues that he was denied the right to cross-examine a witness for the State. The alleged error occurred during the State's rebuttal evidence. Ray Pittman was recalled and examined by the solicitor and testified that he had not seen a pistol of the prosecuting witness. On cross-examination he testified:

"These people could be mistaken when they say they saw a gun in Reatha's hand. I didn't see one. I know she didn't have a pocketbook and she didn't have one in her hand.

Q. So when Linwood Bandy said she had a gun, he was wrong, wasn't he?

OBJECTION: SUSTAINED."

It is obvious that the cross-examination was becoming argumentative. The court had the discretion and the duty to keep the cross-examination within reasonable bounds, and the exercise of that discretion was not error. State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969). This assignment of error is overruled.

Defendant's remaining assignments of error are directed to the court's charge to the jury. The purported assignments of error are not in compliance with our rules. While it is perfectly proper to group two or more exceptions under a single assignment of error where all the exceptions so grouped relate to a single question of law, the grouping of several exceptions relating to different questions of law under a single assignment of error constitutes a broadside assignment of error, therefore, ineffective. Nye v. University Development Co., N.C.App., 179 S.E.2d 795 (filed 31 March 1971). The purported assignments of error to the charge do not quote the portion to which appellant objects nor do they contain a statement of what defendant contends the court should have charged. Daly v. Weeks, 10 N.C. App. 116, 178 S.E.2d 30 (1970). Nevertheless, we have carefully examined the charge of the court and are of the opinion that when read contextually, it sufficiently declared and explained the law arising on the evidence as to all the substantial features of the case and is free from prejudicial error.

No error.

BROCK and HEDRICK, JJ., concur.