State v. Stewart

192 S.E.2d 60 (1972)

16 N.C. App. 419

STATE of North Carolina v. Kenneth Allen STEWART.

No. 7210SC612.

Court of Appeals of North Carolina.

October 25, 1972.

*61 Atty. Gen. Robert Morgan and Associate Atty. Gen. John M. Silverstein, for the State.

James E. Cline, Raleigh, for defendant appellant.

MALLARD, Chief Judge.

The defendant's first assignment of error is that the trial court erred "in allowing the State to continually recall witnesses over objection by defendant." The record reveals that one State's witness testified four different times, another witness testified three different times, and another witness testified on two different occasions. The rule is that the recalling of witnesses ordinarily rests in the sound discretion of the trial judge. See State v. Bentley, 1 N.C.App. 365, 161 S.E.2d 650 (1968) and 98 C.J.S. Witnesses § 365. In Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817 (1954), it is said: "Whether a witness may be recalled is in the sound discretion of the trial judge." When this rule is applied to this case, we hold that the trial judge did not commit error in permitting the State to recall the witnesses.

Defendant assigns as error the failure of the trial judge to allow his motion for judgment of nonsuit. Defendant contends that the only evidence linking him with the crime is fingerprint evidence.

The rule is that evidence, given by a qualified fingerprint expert, of fingerprints corresponding to those of an accused found at a place where the crime was committed under such circumstances that they could have been impressed only at the time the offense was committed is sufficient to withstand a motion for nonsuit. See State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951); State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104 (1951); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969); 29 Am.Jur.2d, Evidence, § 374. When the evidence in this case is viewed in the light of this rule, we are of the opinion and so hold that the trial judge properly overruled the defendant's motion for judgment of nonsuit.

Defendant assigns as error a portion of the judge's charge wherein he summarized a portion of the evidence to the jury. Defendant contends that the evidence does not support this portion of the charge. We do not agree. The general rule is that objections to the recapitulation of the evidence in the charge must be called to the trial court's attention in apt time to afford opportunity for correction in order that an exception thereto will be considered on appeal. See State v. Weaver, 3 N.C.App. 439, 165 S.E.2d 15 (1969), cert. denied, 275 N.C. 263. The defendant did not state his contention that there was a misstatement of the evidence to the trial judge. However, the general rule does not apply to a statement of a material fact not shown in evidence. See State v. Blackshear, 10 N.C.App. 237, 178 S.E.2d 105 (1970), and the cases therein cited. We hold that in the instant case the portion of the charge excepted to was supported by *62 the evidence, and therefore the question of the materiality of the statement complained of does not arise.

In the trial we find no error.

No error.

BRITT, J., concurs.

BROCK, J., concurs in result.

BROCK, Judge (concurring in the result).

I concur in the result reached that the trial of defendant was free from prejudicial error. However, I do not agree with the rule pronounced by the majority concerning fingerprint evidence.

The rule stated by the majority places on the State a heavier burden of proof in the use of fingerprint evidence than is justified. As I read the rule stated by the majority, in order to withstand a motion for nonsuit it is incumbent on the State to conclusively establish that the fingerprints could have been impressed only at the time the offense was committed.

In my opinion, the State need only offer evidence from which the jury could find, after consideration of all the circumstances of the case, that the fingerprints could have been impressed only at the time the offense was committed. The question of whether, under the circumstances of the case as the jury found them to be, fingerprints found at the scene of the crime could have been impressed only at the time when the crime was committed, is a question for determination by the jury, not the court. This, I think, is the intent of State v. Tew, State v. Rogers, State v. Blackmon, and the secondary source material cited by the majority. Also, I think it is the intent of State v. Minton, 228 N.C. 518, 46 S.E.2d 296; State v. Smith, 274 N.C. 159, 161 S.E.2d 449; State v. Pittman, 10 N.C.App. 508, 179 S.E.2d 198; and Annot., 28 A.L.R.2d 1115, at 1150.