State v. McGuinn

PARKER, J.

Defendant assigns as error the trial court’s overruling of his objection to the introduction in evidence of two photographs which purport to show his appearance on the night the crime was committed. He contends these did not illustrate the testimony of any witness and were therefore not competent, and that their introduction in evidence was prejudicial because they showed defendant with a mustache and a short growth of beard, whereas, so his counsel asserts, the defendant is “a nice looking, clean shaven man.” Defendant’s counsel contends that beards and mustaches as shown in the pictures “are generally associated in the minds of the jury and the population as being worn by persons who are either criminals or have a disrespect for the law,” and that therefore the pictures were prejudicial to the defendant. Without expressing any opinion as to the accuracy of counsel’s appraisal of prevailing public attitudes toward hair styles currently popular with one segment of our male population, we find no merit in this assignment of error. Defendant’s appearance on the night the shooting occurred was material and relevant. On that night one of the State’s eyewitnesses had reported to the police that “the boy with the beard pulled the gun and shot Paul,” thereby identifying the defendant. The defendant himself testified on cross-examination that the photographs fairly and accurately represented his appearance on the night of the shooting except that his beard “wasn’t showing up quite that heavy.” Photographs otherwise competent for the purpose of illustrating the testimony of a witness are not rendered inadmissible solely because they may tend to arouse prejudice. State v. Porth, 269 N.C. 329, 153 S.E. 2d 10.

The defendant assigns as error the overruling of his objection to the question asked him on cross-examination as to the date of his marriage. He contends this prejudiced him in the eyes of the jury, since his further answers on cross-examination subsequently disclosed that he already had two children by his wife when he married her sometime after the date of the shooting. There is no merit to this assignment of error. At the time the question was asked concerning the date of his marriage the evidence elicited was innocuous, and defendant failed to object later when questions were asked as to the age of his children. Moreover, in this jurisdiction it has long been settled that “ (f) or the purpose of impeaching defendant’s credibility as a witness the solicitor may cross-examine him as to collateral matters, including charges of other criminal offenses and degrading actions, provided the questions are based on information and asked in good faith.” 2 Strong, N.C. Index 2d, Criminal Law, § 86, p. 607.

Defendant assigns as error the judge’s charge to the jury relative to his plea of self-defense. In this connection the judge instructed the jury that it would be their duty to acquit the defendant if they were satisfied from the evidence that each of several questions should be answered in the affirmative. One of these questions as contained in the judge’s charge was: “Did he (the defendant) use no more force than was reasonably necessary to repel the assault, which he contends the deceased was making upon him at the time the fatal shot was fired?” In State v. Hardee, 3 N.C. App. 426, 165 S.E. 2d 43, this Court has already pointed out that this charge is erroneous in that the court failed to charge the jury with respect to the use of such force as necessary or as was apparently necessary to protect the defendant from death or great bodily harm, quoting from State v. Francis, 252 N.C. 57, 112 S.E. 2d 756, in which our Supreme Court said:

“The plea of self-defense rests upon necessity, real or apparent. S. v. Fowler, 250 N.C. 595, 108 S.E. 2d 892; S. v. Goode, 249 N.C. 632, 107 S.E. 2d 70; S. v. Rawley, 237 N.C. 233, 74 S.E. 2d 620. Or, to put it another way, one may fight in self-defense and may use more force than is actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. The reasonableness of such belief or apprehension must be judged by the facts and circumstances as they appear to the party charged at the time of the assault. As pointed out by Moore, J., in S. v. Fowler, supra, ‘The law does not require the defendant to show that he was actually in danger of great bodily harm.’ Neither does it limit the force to be used in self-defense to such force as may be actually necessary to save himself from death or great bodily harm. But the jury and not the party charged is to determine the reasonableness of the belief or apprehension upon which the party charged acted.”

While in other portions of his charge to the jury the trial judge correctly stated the law applicable to the plea of self-defense, this did not render harmless the error pointed out above. “Conflicting instructions upon a material aspect of the case must be held prejudicial error, since it cannot be known which instruction was followed by the jury.” 7 Strong, N.C. Index 2d, Trial, § 33, p. 327.

We do not pass upon the defendant’s remaining assignments of error, since they may not recur and since for the error in the charge noted above, defendant is entitled to a

New trial.

Campbell and Geaham, JJ., concur.