STATE
v.
Hardy Hershel GREEN.
No. 150.
Supreme Court of North Carolina.
October 14, 1959.Malcolm B. Seawell, Atty. Gen., and H. Horton Rountree, Asst. Atty. Gen., for the State.
Dolley & DuBose, Gastonia, for defendant, appellant.
MOORE, Justice.
At the close of the evidence defendant moved for judgment of nonsuit. G.S. § 15-173. The motion was denied and defendant excepted. Defendant contends that this was error and urges reversal of the ruling on two grounds.
Defendant asserts that he was dazed and in a state of shock by reason of the wreck and the State's evidence that he was intoxicated should be considered nothing more than suspicion or conjecture.
A lay witness testified on direct examination that defendant was "under the influence" *611 of some intoxicants. On crossexamination he stated that "there were a number of things that could have caused the defendant to be unsteady on his feet." An officer who assisted defendant into the jail stated that, in his opinion, defendant "was under the influence of alcohol of some kind." Under cross-examination he testified that "he did not know whether the condition of the defendant was caused by injuries received in the accident or by possible intoxication."
On the other hand, a lay witness testified unqualifiedly "that in his opinion the defendant was under the influence of intoxicating beverage." The arresting officer stated on both direct and cross-examination that defendant's condition was caused by intoxication and not injuries. He testified further that defendant said he was not hurt and did not want to be taken to a doctor.
In State v. Hough, 229 N.C. 532, 50 S.E. 2d 496, 497, the only witnesses for the State were the two arresting officers. Both of them testified in effect "that they did not know whether or not the defendant's condition * * * came from what he had to drink or whether it came from the injuries he sustained." These officers had arrived at the scene about thirty minutes after defendant's car had wrecked. Defendant had three broken ribs and two broken vertebrae. This Court said: "If the witnesses * * * were unable to tell whether or not he was under the influence of an intoxicant or whether his condition was the result of the injuries he had just sustained, we do not see how the jury could do so. * * * We do not think this evidence is sufficient to raise more than a suspicion or conjecture as to whether or not the defendant at the time of his injury, was under the influence of liquor or narcotic drugs within the meaning of G.S. § 20-138 * * *."
In the instant case there is no evidence that the defendant was injured. He told the officer he was not. It is true that two of the witnesses testified in a manner similar to those in the Hough case. Two others testified in effect that defendant was under the influence of intoxicants and his condition was not caused by injuries.
When the State's evidence is conflictingsome tending to incriminate and some to exculpate the defendantit is sufficient to withstand a motion for nonsuit and must be submitted to the jury. State v. Horner, 248 N.C. 342, 345, 103 S.E.2d 694; State v. Robinson, 229 N.C. 647, 649, 50 S.E.2d 740.
Defendant further contends that his arrest was unlawful and the case against him should have been nonsuited for this reason. It is true the record tends to show that the alleged offense was not committed in the presence of the arresting officer, that defendant was arrested without a warrant having been issued and that the warrant was procured in the afternoon following his arrest. G.S. § 15-41. He asserts that he thereby "lost an opportunity to gather evidence for his defense and seek medical attention."
It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or indictment. State v. Helms, 247 N.C. 740, 745, 102 S.E.2d 241; State v. Nugent, 243 N.C. 100, 101, 89 S.E.2d 781. But it is not an essential of jurisdiction that such warrant be issued prior to the arrest and that the defendant be initially arrested thereunder. There is no contention in the instant case that the warrant under which the defendant was tried was not regular on its face and did not properly charge each and every element of the alleged offense.
If a warrant is regular and valid on its face, an objection thereto, should there be grounds therefor, must be by motion to quash. And if the motion is not made before plea of not guilty is entered, it is addressed to the discretion of the trial court and the ruling thereon is not reviewable on appeal. State v. Ballenger, 247 N.C. 260, 261, 100 S.E.2d 845; State v. Suddreth, *612 223 N.C. 610, 613, 27 S.E.2d 623. In the case at bar there was no motion to quash and defendant made general appearances in Municipal Court and Superior Court, entered pleas of not guilty and proceeded to trial on the merits. He thereby waived any objection to the regularity of the warrant by which he had been brought into court. State v. Johnson, 247 N.C. 240, 244, 100 S.E.2d 494.
A motion for nonsuit presents only the question of the sufficiency of the evidence to carry the case to the jury. State v. Nunley, 224 N.C. 96, 97, 29 S.E.2d 17; State v. Smith, 221 N.C. 400, 406, 20 S.E. 2d 360. The evidence in the record, taken in the light most favorable to the State, makes out a prima facie case. And this record discloses no grounds for quashing the warrant had motion therefor been made.
We observe, parenthetically, that there is no evidence to support the contention of defendant that he lost an opportunity to gather evidence for his defense and to seek medical attention. The officer offered to take him to a physician but he stated that he was not hurt and did not want to see a doctor. Furthermore, the record discloses that he was informed of the charge against him. There is nothing to indicate that he was denied bail or was not permitted to communicate with counsel and friends. G.S. § 15-47.
Appellant relies on State v. Mobley, 240 N.C. 476, 83 S.E.2d 100. In that case the officer arrested the defendant for public drunkenness without warrant. The defendant forcibly resisted arrest. He was charged with public drunkenness, resisting arrest and assault on the officer. The jury acquitted him of public drunkenness but convicted him of resisting and assault. The convictions were reversed in Supreme Court. Since he was judicially declared not guilty of public drunkenness, there was no justification for arrest without a warrant. He, therefore, was within his rights in forcibly resisting. The distinction between the Mobley case and the case at bar is that Mobley was convicted of offenses growing out of the unlawful arrest. In the instant case the charge in the warrant did not stem from the arrest itself. The law provides liability, both civilly and criminally, for false arrest. But the law does not discharge a defendant from criminal liability merely because his arrest is not lawful, unless the offense charged stems from such arrest. It should be noted that the General Assembly has amended G.S. § 15-41 since the decision in the Mobley case.
Appellant makes a further contention that there was error in the admission of testimony which entitles him to a new trial.
The court, over the objection of defendant, permitted witnesses to testify with respect to the injuries sustained by the little girl who was struck by defendant's automobile, substantially as follows:
Paul L. Fletcher: She seemed to be hurt. It looked like she had been hit with a car. She looked like she was "broke up." Her chin was bleeding and her arm was broken. She was lying at the foot of the tree. He saw that her arm was broken but did not look at her legs. He saw her again about a month ago, in the hospital. He doesn't know when she got out of the hospital.
Theodore T. Shuford: He saw her at the scene. "She was a-laying under the door. * * * And gasoline started pouring out of the car, and I run and got a piece of pasteboardI didn't want to move herand I just slid her over on this piece of pasteboard." In his opinion she was nine or ten years old. He went to see her in the hospital eight or ten different times. She got out of the hospital about two weeks ago, but he couldn't say definitely.
During the charge of the court, at the request of defendant's counsel, the jury was instructed as follows:
"Ladies and Gentlemen, you will not consider in any aspect the fact that there was an injury to another person growing out of the car wreck. The onlyonly matter that you are to determine *613 in this action is whether at the time and place in question the defendant was operating his automobile while under the influence of intoxicating beverages."
Defendant's position is that the evidence of the child's injuries and her hospitalization is irrelevant to the issues in the case and calculated to prejudice his cause and create sympathy for the State's case.
If the only effect of evidence is to excite prejudice or sympathy, its admission may be ground for a new trial. But relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it. North Carolina Law of Evidence: Stansbury, § 80, p. 143. State v. Hudson, 218 N.C. 219, 231, 10 S.E.2d 730.
Irrelevant evidence, tending to prejudice the opponent and create sympathy for the party offering it, has been held in some cases to be cause for a new trial notwithstanding the instructions of the court to disregard it. State v. Page, 215 N.C. 333, 334, 1 S.E.2d 887; Gattis v. Kilgo, 131 N. C. 199, 42 S.E. 584.
In this case the testimony that the child was injured, that the injuries were serious and that she was hospitalized, was clearly relevant as bearing upon the manner of operation of the automobile and the lack of control by defendant. "The state could not be deprived of the benefit of evidence which was relevant and material because it might also have a tendency to prejudice the defendants." State v. Cox, 201 N.C. 357, 360, 160 S.E. 358, 359.
We are inclined to the view that the evidence was given in more detail than the State's case required and that the recounting of the visits to the hospital was in the twilight of relevancy. We do not approve the fulsomeness of the testimony. Yet, in view of the court's instruction, given at defendant's request, it is our opinion that error was overted and a new trial is not warranted.
"The power of the court to withdraw incompetent evidence and to instruct the jury not to consider it has long been recognized in this state. * * * In McAllister v. McAllister, 34 N.C. 184, Ruffin, C. J., said: `It is undoubtedly proper and in the power of the court to correct a slip by withdrawing improper evidence from the consideration of the jury, or by giving such explanations of an error as will prevent it from misleading a jury.' He expressed the same opinion three-quarters of a century ago, and the practice has been observed since that time. (Citing cases.)" State v. Stewart, 189 N.C. 340, 345, 127 S.E. 260, 262. This principle has been applied consistently and it has been generally held that this procedure averts error. State v. Hamer, 240 N.C. 85, 89, 81 S.E.2d 193; State v. Strickland, 229 N.C. 201, 207, 49 S.E.2d 469; State v. Artis, 227 N.C. 371, 373, 42 S.E.2d 409; State v. Vicks, 223 N.C. 384, 386, 26 S.E.2d 873; State v. King, 219 N.C. 667, 678, 14 S.E.2d 803; Hagedorn v. Hagedorn, 211 N.C. 175, 177, 189 S.E. 507; State v. Perry, 210 N.C. 796, 798, 188 S.E. 639; State v. Oakley, 210 N.C. 206, 211, 186 S.E. 244; Nance v. Merchants' Fertilizer & Phosphate Co., 200 N.C. 702, 708, 158 S.E. 486; Eaker v. International Shoe Co., 199 N.C. 379, 385, 154 S.E. 667; In re Will of Yelverton, 198 N.C. 746, 749, 153 S.E. 319; Sentelle v. Board of Education, 198 N.C. 389, 391, 151 S.E. 877; State v. Griffin, 190 N.C. 133, 136, 129 S.E. 410; Gerow v. Seaboard Air Line Ry., 189 N.C. 813, 819, 128 S.E. 345; State v. Love, 189 N.C. 766, 773, 128 S.E. 354.
In State v. Strickland, supra [229 N.C. 201, 49 S.E.2d 473], the Court says:
"In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious *614 character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. (Citing cases.)"
Altogether there are eighteen assignments of error. We have carefully considered each of them. Appellant has failed to show prejudicial error. John R. Taylor Co. v. North Carolina State Highway and Public Works Commission, 250 N.C. 533, 539, 109 S.E.2d 243.
No error.
HIGGINS, J., not sitting.