State v. Hoyle

164 S.E.2d 83 (1968)

3 N.C. App. 109

STATE of North Carolina v. Donald Wesley HOYLE.

No. 6825SC330.

Court of Appeals of North Carolina.

November 20, 1968.

*84 Atty Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.

Byrd, Byrd & Ervin by John W. Ervin, Jr., Morganton, for defendant appellant.

MALLARD, Chief Judge.

The defendant asserts that the following four questions are raised on this appeal:

"1. Did the questioning of witnesses by the Court constitute an expression of opinion as to the weight and sufficiency of evidence? 2. Did the Court's recapitulation of the defendant's evidence constitute an expression of opinion by the Court? 3. Did the Court err in its charge to the jury on the elements of the plea of self-defense? 4. Did the Solicitor prejudice the defendant by making a remark in the presence of the jury that the defendant had not testified in his own behalf?"

The defendant contends that the questioning of witnesses by the judge violated his duty under G.S. § 1-180, not to express an opinion on the evidence during the course of a trial or in his charge to the jury. In the case of State v. Perry, 231 N.C. 467, 57 S.E.2d 774, we find the following language:

"It is well settled in this jurisdiction that it is improper for a trial judge to ask questions for the purpose of impeaching a witness. * * * On the other hand, there are times in the course of a trial, when it becomes the duty of the judge to propound competent questions in order to obtain a proper understanding and clarification of the testimony of the witness or to bring out some fact that has been overlooked. But the trial judge should not by word or mannerism convey the impression to the jury that he is giving it the benefit of his opinion on the facts. * * * The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction *85 of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless." See also State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334; State v. Hoover, 252 N.C. 133, 113 S.E.2d 281; and 2 Strong, N.C. Index 2d, Criminal Law, § 99.

Looking at the record as a whole and considering the questions propounded by the judge, in the light of all the attendant facts and circumstances disclosed by this record, we are of the opinion that the questions propounded to the witnesses by the judge were for the purpose of clarification and were not expressions of opinion and therefore not prejudicial to defendant.

While defendant's counsel was cross-examining one of the State's witnesses, the following occurred:

"Q You were watching it. Did he just kind of walk up on the bank as I am walking? A No, he jumped. Q Quickly? A Quickly? Q Yes. A Quickly? Q Yes. A Did he? THE COURT: Can you jump slow?"

While we do not approve of such a question being propounded by the court to the lawyer, or to a witness, under the circumstances disclosed by the record, we are of the opinion that such was not prejudicial error.

Defendant contends that the court committed error in recapitulating the defendant's testimony in stating that the defendant and the deceased "went together" instead of using some other words to convey how the defendant and the deceased engaged in a fight in which the defendant contends he was cut by the deceased with a pocket knife. This contention is without merit. Some of the witnesses used the term they "went together." The defendant used the words, "I walked out there, walked up to him," and again, "I walked up to him and I said, `John Henry, what is wrong with you?' That is when he come off on me and cut me with a knife." If the defendant considered the words "went together" to be a misstatement of the evidence, he did not call this to the attention of the court at the time.

"The court, in reviewing the evidence offered by the respective parties, is not required to give the jury a verbatim recital of the testimony. It must of necessity condense and summarize the essential features thereof in short-hand fashion. All that is required is a summation sufficiently comprehensive to present every substantial feature of the case. When its statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction. * * * As the Court's attention was not called thereto and exception not entered in apt time, they are not now tenable." Steelman v. Benfield; Parsons v. Benfield, 228 N.C. 651, 46 S.E.2d 829; see also O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321.

The defendant contends but cites no authority other than G.S. § 1-180 that the court committed error in failing to explain what was meant by the words "was the defendant at a place where he had a right to be," contending that the court should have charged as to whether or not the defendant Hoyle had a right to be at the place where the shooting occurred. This contention is without merit. Also, this assignment of error is improper in that it is based on an exception that does not appear of record. The evidence tends to show that the fatal shooting took place *86 behind a place of business after an argument, between the parties, had occurred on the inside. Both the deceased and defendant were customers at this place of business. There was no request for special instructions on this aspect of the law. We are of the opinion and so decide that the trial judge correctly and adequately charged the jury on self-defense.

The defendant's final assignment of error relates to a remark made by the solicitor that the defendant had not testified in his own behalf.

A defendant's witness was on the witness stand and was being examined by defendant's attorney when the following occurred:

"Q What was John Henry McDaniels' general reputation there in the community where he lived? SOL. CHILDS: Objection. THE COURT: Overruled. A He would cut you. I had heard SOL. CHILDS: Objection; move it be striken (sic). THE COURT: Overruled. SOL. CHILDS: If the Court, please, you may overrule. He is trying to get something through the back door. It isn't competent at this time. THE COURT: He is entitled to show his reputation as being a dangerous and violent man. SOL. CHILDS: He hasn't put the defendant up. He can't get it in at this particular point as competent evidence. THE COURT: Overruled."

The remark made by the solicitor related to the competency of evidence that was being sought to be introduced and was not calculated to "mislead and prejudice the jury," and we are of the opinion that it did not mislead or prejudice the jury so as to require a new trial. State v. Miller, 271 N.C. 646, 157 S.E.2d 335; State v. Bentley, 1 N.C.App. 365, 161 S.E.2d 650; 2 Strong, N.C.Index 2d, Criminal Law, § 102.

We therefore hold that the remark of the solicitor, under the circumstances, was not sufficiently prejudicial to warrant a new trial.

In the trial, we find

No error.

CAMPBELL and MORRIS, JJ., concur.