State v. Jones

PHILLIPS, Judge.

Defendant first contends that the trial court erred in denying his motion to dismiss the charge of second degree murder because the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt that he was guilty. Specifically, he contends that his statement to the deputy sheriff, introduced into evidence by the State, exculpated him under State v. Tolbert, 240 N.C. 445, 82 S.E. 2d 20 (1954). We disagree. The introduction of a defendant’s exculpatory statement does not preclude the State from showing that the facts were otherwise; and when the State’s evidence, according to the view taken of it, tends to both inculpate and exculpate the defendant, it is a jury issue. State v. Robinson, 229 N.C. 647, 50 S.E. 2d 740 (1948). Defendant’s statement that he shot Smith in self-defense when Smith was advanc*617ing on him with a knife is contradicted by evidence that Smith had nothing in his hands but some cigarettes, his knife was closed and in his pocket, and neither man moved towards the other after the warning shot was fired. Thus, the jury was at liberty to choose between these conflicting versions of the incident and their finding that defendant shot Smith with felonious intent, rather than in self-defense, is not invalid, as defendant contends.

The defendant also cites as error the prosecutor’s cross-examination of Geneva Smith, the widow of the decedent and a witness for the defendant, as follows:

Q Truth is, Mrs. Smith, you can say about anything you want to since your husband isn’t here —
Mr. Gordon: Object.
Q — to contradict you, can’t you?
THE Court: Overruled.
Q Can’t you?
A What?
Q Tell about anything you please about threats or anything else, can’t you?
A Well, I’m telling the truth.
Q You took an oath to tell the truth, didn’t you?
A That’s right.

While this was certainly improper cross-examination and for the obvious purpose of prejudicing defendant’s case with the jury, we seriously doubt that it had that effect. Jurors are not without perception; those sitting on this case already knew that there would be no rebuttal by the decedent, and since few people enjoy being told the obvious, it is unlikely that the prosecutor’s announcement of that fact impressed them. Even so the court should have stopped and corrected this attempt at prejudice, rather than condone it.

No error.

Judges ARNOLD and COZORT concur.