State v. Hensley

222 S.E.2d 716 (1976)

STATE of North Carolina v. James Hal HENSLEY.

No. 7525SC895.

Court of Appeals of North Carolina.

March 17, 1976.

*718 Atty. Gen. Rufus L. Edmisten by Associate Atty. J. Michael Carpenter, Raleigh, for the State.

John H. McMurray and Robert E. Hodges, Morganton, for defendant-appellant.

MORRIS, Judge.

Defendant contends that the trial court erred in overruling his motion to strike Dr. McWhorter's testimony pertaining to the injuries sustained by Angela Lee Church because the State ". . . did not offer any evidence that defendant assaulted the said Angela Lee Church in any manner that did in fact or may have caused such injuries." This contention is without merit.

The child's mother, testifying extensively as to the events of 27 November 1974, stated that prior to the alleged assault by defendant the infant was well, unmarked and unbruised. After hearing loud slaps, crying screams coming from the bathroom where defendant alone was closeted with the child she found her child naked, bruised, scratched and bleeding from about the mouth. There is sufficient evidence that this assault in fact occurred, that defendant was the assailant, and the State therefore provided a proper foundation for the physician's testimony.

Notwithstanding our finding that a proper foundation was laid, defendant has waived his right to contest the admissibility of this evidence for failure to make a timely objection thereto. No objection appears in the record. As our Supreme Court stated in State v. Hunt, 223 N.C. 173, 176, 25 S.E.2d 598, 600 (1943), ". . . if it be conceded that the testimony offered is incompetent, objection thereto should have been interposed to the question at the time it was asked as well as to the answer when given. An objection to testimony not taken in apt time is waived. . . . Afterward, a motion to strike out the testimony, to which no objection was aptly made, is addressed to the discretion of the trial judge, and his ruling in the exercise of such discretion, unless abuse of that discretion appears, is not subject to review on appeal." See also: State v. Pope, 287 N.C. 505, 215 S.E.2d 139 (1975); State v. Davis and State v. Fish, 284 N.C. 701, 202 S.E.2d 770 (1974), cert. denied, 419 U.S. 857, 95 S. Ct. 104, 42 L. Ed. 2d 91. Here no such abuse of discretion appears in the record.

Defendant's remaining assignments of error are addressed to the sufficiency of evidence to withstand the motion for nonsuit and to various aspects of the charge to the jury. The evidence was plenary for submission to the jury and the charge of the court is free of prejudicial error.

No error.

VAUGHN and CLARK, JJ., concur.