State v. Hodges

BRITT, Judge.

Defendant contends first that the court committed prejudicial error in sustaining the State’s objections to his counsel’s questions to him as to why he shot Harris. We find no merit in this contention.

This contention relates to Exceptions 4, 5 and 6. With respect to them, the record discloses:

Q. Mr. Hodges, why did you shoot Mr. Harris?
A. Well, I was afraid of him and I knew he was going to hurt me.
*331Objection of the District Attorney sustained.
Exception No: 4
Q. Can you tell us why you shot Mr. Harris?
A. I knew he was going to hurt me.
Objection of District Attorney sustained.
Exception No. 5
I was afraid of him because I knowed he had a bad reputation. He had a reputation for being dangerous. . . .
Q. I ask you, Mr. Hodges, why you were afraid of him.
OBJECTION by the District Attorney sustained.
Exception No. 6
The witness was permitted to make the following answer to the court reporter in the absence of the jury: “because he had a dangerous reputation. He assaulted his brother, was charged with assaulting his brother and two or three more in the neighborhood.”

Defendant argues that a defendant may show that he shot and killed his adversary under a reasonable apprehension of death or great bodily harm, and that the exclusion of his testimony to that effect was reversible error; he cites State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974); State v. Gladden, 279 N.C. 566, 184 S.E. 2d 249 (1971), and other cases. While we agree with the stated rule, we do not think it was violated to defendant’s prejudice in the case at hand.

Although we think the trial court erred in sustaining the State’s objections indicated by Exceptions 4 and 5, we perceive no prejudice to the defendant. The court sustained the objections but it did not strike the answers or instruct the jury not to consider the answers. Then, in the next sentence, defendant was allowed to state without objection that he was afraid of Harris because he had a reputation for being dangerous.

With respect to the question and answer to which Exception 6 relates, we think the objection was properly sustained for the reason that defendant had just stated why he was afraid of Harris. This conclusion is confirmed by the excluded answer— *332“because he had a dangerous reputation”. Clearly, the remaining portion of the excluded answer, that relating to Harris’ assaulting other people, was not admissible for the reason that there was no showing that defendant had personal knowledge of the assaults. State v. Mize, 19 N.C. App. 663, 199 S.E. 2d 729 (1973).

Defendant’s contention that the court erred in permitting Mrs. Harris to testify that she told defendant over the telephone that she considered a statement made by him a threat has no merit for the reason that there was no objection to the question that produced the testimony or a motion to strike it. The record indicates that the objection was to Mrs. Harris’ testimony that she recognized defendant’s voice over the telephone. 4 Strong’s N.C. Index 3d, Criminal Law § 162.

Defendant’s contention that the trial court committed prejudicial error in denying his motion for nonsuit of the charge of second-degree murder has no merit. In the first place, we think the evidence was sufficient to sustain a verdict of second-degree murder. Assuming, however, that it was not sufficient, defendant has failed to show prejudice since he was, in effect, acquitted of second-degree murder. State v. Miller, 272 N.C. 243, 158 S.E. 2d 47 (1967).

With respect to his Exception 13, which relates to a portion of the jury charge, defendant contends the trial court failed to properly define the law relating to the admission of a statement defendant made to a police officer prior to trial. This contention has no merit.

Defendant relies on State v. Edwards, 211 N.C. 555, 191 S.E. 1 (1937), which holds that the whole of a confession must be taken together, considering both those portions which are favorable to as well as those which are against the accused. The principle expressed in Edwards is not applicable to this case for the reason that there was no attempt by the State to separate defendant’s statement to the officer into pro and con components. The instruction given to the jury was for it to consider all the circumstances under which the statement was made in determining the weight that should be given to it. The instruction was not contrary to the holding in Edwards.

In his brief defendant argues his Exception 14 which evidently refers to a portion of the jury charge. However, the record *333fails to contain an Exception 14 in the charge and the portion of the charge to which it might relate. That being true, the exception is not considered. Rule 10, Rules of Appellate Procedure, 287 N.C. 671, 698, 699.

Exceptions 15 and 16 relate to the court’s instructions on corroborative evidence and conflicts in the evidence. Defendant contends that the court committed prejudicial error in giving these instructions for the reason that no evidence was introduced for the purpose of corroboration and there was no conflicting evidence. We find no merit in this contention. On the question of corroborative evidence, assuming there was no evidence presented solely for the purpose of corroborating other evidence, we can perceive no prejudice to defendant because of the isntruction. As to the conflicts in the evidence, definitely there were conflicts, justifying the instruction on that point.

Exception 17 relates to the court’s instruction to the jury to the effect that the State may rebut defendant’s evidence of the reputation of deceased for violence by showing evidence of the good character of Harris for peace and quiet. Defendant argues that there was no evidence offered by the State that Harris had a reputation for peace and quiet. He further argues that the State offered evidence of the general good character of Harris; that the evidence was improper under State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48 (1967), and State v. Champion, 222 N.C. 160, 22 S.E. 2d 232 (1942); and that he should be granted a new trial as was done in those cases.

As to defendant’s first argument pertaining to Exception 17 aforesaid, we think the testimony of witness Eubanks was sufficient to justify the instruction. Without objection Mr. Eubanks testified that Harris’ general “character and reputation” in the community in which he lived was good, that he “saw no signs of violence”, and that he never heard anyone express an opinion that Harris was “of a dangerous propensity”. As to defendant’s second argument, evidence of Harris’ general reputation and standing was not objected to, therefore, defendant is deemed to have waived any objection thereto. State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975), modified 428 U.S. 902, 49 L.Ed. 2d 1206, 96 S.Ct. 3203 (1976).

*334Defendant’s Exceptions 18, 19, 20 and 21 relate to certain portions of the jury charge pertaining to contentions of the State. We find no merit in defendant’s challenge to these parts of the charge for the reason that objections to the charge in stating the evidence and contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise, objections are deemed to have been waived and will not be considered on appeal. State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973); State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970).

Defendant’s other exceptions brought forward and argued in his brief also relate to the jury charge. It suffices to say that we have carefully reviewed these portions of the charge, particularly those pertaining to self-defense, and conclude that they too are free from prejudicial error.

In defendant’s trial and the judgment appealed from, we find

No error.

Judge HEDRICK concurs. Judge WEBB dissents.