State v. Mizelle

190 S.E.2d 277 (1972)

15 N.C. App. 583

STATE of North Carolina v. James Kermit MIZELLE.

No. 721SC555.

Court of Appeals of North Carolina.

August 2, 1972.

*278 Atty. Gen. Robert Morgan, by Asst. Atty. Gen., R. S. Weathers, for the State.

Twiford & Abbott, by Christopher L. Seawell, Elizabeth City, for defendant.

BROCK, Judge.

Defendant argues that it was prejudicial error to allow into evidence the pornographic movies and the exhibition of them to the jury. He argues that defendant's possession of these movies is equally as consistent with his innocence as with his guilt. He relies upon State v. Stone, 240 N.C. 606, 83 S.E.2d 543.

The movies were not offered in this case as substantive evidence of defendant's guilt of incest. They were offered to corroborate the testimony of the daughter. For this purpose they were properly admitted.

Defendant argues that it was prejudicial error to allow the movies into evidence because they were obtained by an illegal search and seizure. The trial judge conducted a full evidentiary hearing upon this question. The evidence tended to show that the daughter secured all of the film strips at the suggestion of her minister's wife. Because of their weight, she hid them beside a tree on her mother's property. Her mother thereafter requested and permitted the sheriff to go upon the property to get the film strips. The trial judge ruled, and we agree, that the search and seizure was proper.

Defendant argues that it was prejudicial error for the judge to allow the movies into evidence without giving the jury special instructions on corroborative evidence. If defendant desired such instructions, he should have requested them. It was not error for the court to fail to give the instructions, absent a request.

No error.

MORRIS and HEDRICK, JJ., concur.