STATE
v.
Robert S. CONNER.
No. 363.
Supreme Court of North Carolina.
May 9, 1956.*669 Atty. Gen. William B. Rodman, Jr., Asst. Atty. Gen. T. W. Bruton, for the State.
Oren W. McClain, Philip E. Lucas, Winston-Salem, for defendant appellant.
WINBORNE, Justice.
Defendant presents for consideration five assignments of error based upon exceptions taken in the course of the re-trial in Superior Court. A careful consideration of each of the assignments fails to show error for which the judgment from which defendant appeals should be disturbed.
The first assignment of error is that the trial court erred in allowing a police officer to testify, over objection by defendant, as to the discovery of a bullet on the west side of the store at the end of the meat counter, a month and a half or two months after the commission of the alleged crime, and in allowing, over objection, the introduction of the bullet into evidence as shown by Exceptions 1, 5, 6 and 8.
The evidence offered by the State tends to show that defendant confessed to the officers, and admitted on the trial, he shot Roberts twice in the store at the place of the robbery. And the evidence offered by the State tends to show that the bullet so found in the store had been shot out of the .38 pistol with which defendant admitted he shot Roberts. Whether the conditions in the store at the time the bullet was found were the same as at the time of the crime seems to be immaterial.
The second assignment of error is that the trial court erred in allowing police officers to testify, over objection of defendant, as to an unidentified abrasion on *670 the wall near where the bullet, to which the exceptions on the first assignment of error relate, was so found, and in allowing, over objection of defendant, the introduction in evidence of photographs showing an arrow pointing to said abrasion as shown by Exceptions 2, 2a, 3, 4 and 7. The record discloses that the photographs were admitted in evidence for the purpose of illustrating the testimony of the witnesses in the case, under appropriate instruction to the jury. For this purpose the photographs were competent. Moreover, whether the abrasion was made by a bullet shot from a pistol, and whether it was made by a bullet shot from the .38 pistol defendant admits he used in shooting Roberts in another part of the store, are immaterial matters and harmless.
The third assignment of error is that the trial court erred in allowing the Solicitor, on cross-examination, to question defendant as to his participation in specific crimes, as shown by Exceptions 9, 10, 11, 12 and 13. Counsel for defendant direct attention to stenographic report of the cross-examination by consent of the Solicitor.
Nevertheless it does not appear that the Solictor exceeded the bounds of legitimate practice in asking defendant as to his various infractions of the law, enumerated in the case on appeal. See State v. Broom, 222 N.C. 324, 22 S.E.2d 926; State v. Neal, 222 N.C. 546, 23 S.E.2d 911, 912, and numerous other cases.
In the Neal case, just cited, in opinion by Devin, J., it is stated: "It has been uniformly held * * * that witnesses may be asked questions tending to show the commission of other offenses for the purpose of impeaching their credibility, provided the questions are based on information and asked in good faith * * * and that whether the cross-examination goes too far or is unfair is a matter for the determination of the trial judge, and rests largely in his sound discretion", citing cases.
The questions asked in the case in hand are in the main of a kindred nature to the offense in which defendant was engaged when he shot Roberts, and appear to have been based upon information and to have been asked in good faith, in that defendant admitted most of the impeaching questions. The case is distinguishable in factual situation from State v. Phillips, 240 N.C. 516, 82 S.E.2d 762.
The fourth assignment of error is that the trial court erred in allowing the Solicitor to argue to the jury, over objection of defendant, that the shooting took place in a manner which was not supported by any competent evidence, as shown by Exception 14. It is contended that the Solicitor argued to the jury that the defendant probably marched the deceased to the back of the store and shot him.
In the light of the evidence this argument appears to have a legitimate basis. The case on appeal discloses that Estelle Wright, witness for the State, testified that she lives on the northeast corner of Third Street, across the street from Roberts' store, and that on the morning of 24 May, 1954, she heard shots or sounds like pistol shots. "I heard three * * * about 7:35 in the morning," in her language.
And defendant gave this narrative: That when the two children came out of the store "then I went in. And * * * I did ask for the chewing gum. I went in there with the intention to rob him and he turned around * * * and I told him this was a stick-up * * * after he turned around, we were standing just probably about a step or two from the cash register, which * * * was open * * He started to reach under the counter, that is, Mr. Roberts * * * and I asked him to get away from the counter. He would not do it. I took my left hand and I pushed him away from the counter, * * he grabbed my right arm. That is the hand I had the gun in * * * and me and himI was trying to get loose from him * * * As we scuffled the first shot went off and he still had hold of me. and as we stood there I fired the next shot *671 * * * I didn't know at the time that either shot had hit him. As he stood there a moment against the counter, and then he began to walk back from this place * * * As he walked back, I stood there just a moment and then I walked toward him, and he had then turned and went there about the meat block, and he laid his hand on that meat block, and made a peculiar groan; that is when I left. He slumped over. The gun was pointed down the whole time * * * I went out. I do remember taking the money * * *."
The fifth assignment of error is that the trial judge erred in instructing the jury to the effect that its verdict should not be based on sympathy, as shown by Exception 15.
It appears that the court, early in the charge, and after telling the jury that it is the province of the jury to determine what the truth is and what the facts are, allowing the verdict, in so far as it is humanly possible, to speak the truth, stated to the jury: "It is your duty to return a verdict that does speak the truth, members of the jury, and not one based on some prejudice or some sympathy that might arise in the case." The exception is to quoted sentence.
In this connection the case on appeal clearly shows that this portion of the charge is wholly disconnected from later portion of the charge wherein the court instructed the jury in respect to the various verdicts that might be returned. In respect to the unbridled right of the jury to return a verdict of guilty of murder in the first degree, with recommendation that his punishment be imprisonment for life, the instruction of the court is explicit, and understandable, and fully in accord with the opinion of this Court on the former appeal in this case, 241 N.C. 468, 85 S.E.2d 584.
Furthermore, careful examination of the record in the case indicates that the trial below was conducted in accordance with the usual practice and procedure. And the Supreme Court finds no error in the trial.
No error.