State v. Nelson

CLARK, Judge.

Defendant’s claim of error in the denial of his motion to quash the indictment is without merit. The language of the indictment follows substantially the language of the statute, which meets the requirements of the law. State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955); State v. Randolph, 228 N.C. 228, 45 S.E. 2d 132 (1947); State v. Lane, 1 N.C. App. 539, 162 S.E. 2d 149 (1968).

Defendant made numerous exceptions to the admission of evidence over his objection: testimony of Whisnant that defendant did not see Debra Blackburn on his first visit to the trailer, that defendant must have had another gun because more shots were fired after he took the gun from defendant, that he heard defendant crank his car, testimony of Wanda Gilbert that Debra Blackburn had been going with defendant for five years, and testimony of Officer Buchanan that Debra Blackburn did not appear to be intoxicated when he saw her at the hospital. We concede that some of the testimony could qualify as “opinion” evidence. But the distinction between fact and opinion is one of degree only, and the opinion rule simply imposes limits on the witness’s freedom to express himself in terms of inferences from facts observed by him or gathered from other sources. In the case sub judice the witnesses stated impressions or inferences based on personal observations, or made shorthand statements of the facts. 1 Stansbury, N.C. Evidence (Brandis Ed.) § 124. The facts observed by the witnesses had been related to the jury and were clearly comprehensible. If we concede error in the admission of any of the evidence questioned by defendant, clearly the exclusion of evidence would not have produced a different result, and the error is not sufficient grounds for a new trial. See State v. Watson, 294 N.C. 159, 240 S.E. 2d 440 (1978).

We have examined the record on appeal to determine if defendant was prejudiced by leading questions asked by the State, and we find the number of such questions were limited. This is a matter within the discretion of the trial judge, who is *238reversed only for abuse of discretion. State v. Clanton, 278 N.C. 502, 180 S.E. 2d 5 (1971).

Testimony as to the wounds sustained by Ms. Blackburn was allowed in the presentation of the State’s case, before defendant’s motion to dismiss on the charge of assaulting her. At that time it was relevant. Further, the State had evidence that Ms. Blackburn stated immediately after being wounded that defendant had shot her. We find no merit in defendant’s hindsight assignment of error. At that time the seriousness of the injury was clearly an essential of the charged assault upon Ms. Blackburn. State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626 (1964).

Defendant assigns as error the exclusion of his testimony that Jimmy Abee had assaulted defendant on another occasion. Since defendant offered evidence of self-defense, he' could offer evidence of a prior assault upon him by Abee for the purpose of showing reasonable apprehension of death or bodily harm at the hands of Abee. State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48 (1967). But defendant attempted to introduce evidence of an assault made upon him by Abee after the time of the charged assault, which had no bearing upon defendant’s apprehension on the occasion in question. Evidence of a post-charge assault by Abee upon defendant would be only remotely relevant and would be outweighed by confusing the critical issues in the minds of the jurors.

The trial judge gave to the jury written instructions, which required them to answer five questions on five elements of the felonious assault charged in the indictment. By their answers to these questions the trial judge could determine clearly whether the jury found defendant guilty of the crime charged, or only lesser offense thereof, or not guilty. The indictment charged a statutory offense with multiple elements, and with several lesser included offenses. See G.S. 15A-1237(a): “The verdict must be in writing, signed by the foreman, and made a part of the record of the case.” This statute is effective 1 July 1978.

We find that defendant had a fair trial, free from prejudicial error.

No error.

Judges Britt and Erwin concur.