State v. Stephens

CLARK, Judge.

On cross-examination, Mrs. Utley, the bank teller, was questioned regarding her identification of the defendant. A portion of her response was, “I know it was him because I had cashed some forgeries for him earlier.” The defendant assigns as error the denial of his motion to strike the answer and his motion for mistrial. The foregoing testimony appears in narrative form. The question which prompted the comment does not appear. Under these circumstances, we must assume it was responsive and in explanation of her identification of the defendant. Defense counsel assumes some risk of damage to his cause in the cross-examination of an adverse witness. Even the ablest occasionally suffer injury, sometimes irreparable, from response during cross-examination, unforeseeingly elicited and often the result of -witness idiosyncrasy rather than advocate delinquency. When so educed and responsive, the suffering is seldom relieved by appellate review. State v. Ritzel, 24 N.C. App. 88, 209 S.E. 2d 883 (1975). Too, that part of the answer relating to the witness’s past transaction with the defendant was responsive and admissible. The broadside motion to strike the entire answer was properly overruled. State v. Patterson, 284 N.C. 190, 200 S.E. 2d 16 (1973).

In cross-examination the District Attorney asked the defendant, “When did you first begin having problems with the issuance of worthless and forged checks?” This question followed the' defendant’s testimony that he had been convicted of several worthless check charges and of store breaking and larceny. The defendant assigns error because there was no evidence that he had been convicted of forgery. Since the record does not disclose the ruling on the objection nor any answer *284to the question, we must assume that the objection was sustained. It is improper for a prosecuting attorney to inject in his question supposed facts which are not supported by the evidence, but the impropriety becomes reversible error only when prejudicial to the accused. In State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971), the court quoted with approval from 8 Strong, N. C. Index 2d, Criminal Law, § 169, p. 135, the following language: “Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent,•.•will, not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result. ...”

In this case, there was abundant testimony to support the case for the State. The defendant was positively identified by the bank teller, and the handwriting expert testified that in his opinion the defendant signed the checks. When we consider the alleged impropriety in the context of the entire evidence, we find that there is no reasonable possibility that the statement by the witness might have contributed to the conviction.

No error.

Judges Morris and Vaughn concur.