State v. Williams

Campbell, J.

The defendant assigns as error that police officer, R. A. Studer and Lorraine Smith, the mother of Mary, were permitted to testify for the purpose of corroborating Mary that she had told each of them that she knew the person who had assaulted her and that she knew him only by his nickname, Jabbo. The defendant stresses that this purported corroborating testimony did not corroborate Mary.

When we look at the record, we find that none of this testimony was objected to, nor any exception taken thereto.

“The jurisdiction of the Supreme Court on appeal is limited to questions of law or legal inference, which, ordinarily, must be presented by objections duly entered and exceptions duly taken to the rulings of the lower court.” 1 Strong, N.C. Index 2d, Appeal and Error, § 1, p. 103.

“The Supreme Court ordinarily will not consider questions not properly presented by objections duly made and exceptions duly entered, and assignments of error properly set out, though it may do so in exceptional instances in the exercise of its supervisory jurisdiction. . . .

. . . Exceptions which appear nowhere in the record except under the purported assignments of error will not be considered. ...” 1 Strong, N.C. Index 2d, Appeal and Error, § 24, p. 145.

The defendant next assigns as error that the trial court permitted Mary to testify that she identified the defendant at the police station by looking through a glass into another room at a time when the defendant was not in a lineup and did not have counsel present and had not waived counsel. The defendant again fails to have any objections or exceptions in the record and, therefore, the question which the defendant seeks to raise is not properly presented. Nevertheless, there was no improper identification in the instant case. Mary was well acquainted with the defendant prior to the alleged assault. She did not know the full name of the defendant and only knew him by his nickname of Jabbo. She had known him for several months and was well acquainted with him. She was taken to the police station merely for the purpose of informing the police officers as to whether or not the person they had in custody was the person she had been trying to identify to them. As a result of the severe injuries which she had received, she had had a case of amnesia which had lasted over a period of several weeks. Both the identification of the picture of the defendant and the identification of the defendant himself at the police station were merely for the purpose of assuring the police officers that the person they had apprehended and arrested and accused of the offense was the person she had been endeavoring to tell them about. The defendant seeks to rely upon the cases of United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; and State v. Wright, 274 N.C. 84, 161 S.E. 2d 581, in support of his argument.

As stated by Brock, J., in State v. Hunsucker, 3 N.C. App. 281, 164 S.E. 2d 507, (certiorari denied, 31 January 1969, 275 N.C. 138):

“The rationale underlying the decisions in the cases relied upon by defendant is that unfairness in the ‘lineup’ or other arranged identification process may arise by exhibiting the accused so as to suggest his identity to the witness and thereby obtain a positive identification from the witness which the witness will not later admit was indefinite or mistaken; and that the absence of counsel at this stage of the proceeding would prevent any effective cross-examination of the witness relative to the identification process. . .

In the case sub judice there was no effort being made to have Mary identify the defendant. She already knew the defendant and the only purpose for her going to the jail was to assure the police officers that the person whom she knew and whom she had attempted to identify for their benefit was the person they had arrested.

Despite the failure of objections and exceptions in the record, we have nevertheless reviewed all of the testimony in this case, and it was ample and sufficient to submit the cases to the jury. The jury, as the trier of the facts, has found the facts against the defendant. The charge of the trial court was not excepted to and no errors are claimed in that regard. The defendant has had a fair and impartial trial free of prejudicial error.

No error.

BROCK and MoReis, JJ., concur.