State v. Hill

170 S.E.2d 99 (1969)

6 N.C. App. 365

STATE of North Carolina v. Linwood K. HILL.

No. 6910SC488.

Court of Appeals of North Carolina.

October 22, 1969.

*101 Atty. Gen. Robert Morgan by Staff Atty. Eugene A. Smith, Raleigh, for the State.

Russell W. DeMent, Jr., Raleigh, for defendant appellant.

VAUGHN, Judge.

The defendant brings forward an assignment of error based on the failure of the court to strike certain portions of Sandra's testimony. The witness was asked to relate what happened immediately before and after she saw the defendant. She described his entrance, the scuffle with Christie and then said, "I ran to the telephoneSee, I was going to call the police. That is all I can ever do to get him out." At another point the witness was testifying as to what happened after the defendant left. She stated that "* * * half my furniture was turned over and I called the police, and the police came out then and told me what I could do and I did it and went to court about it and he was found guilty and they gavehe was already on two years suspension. * * *" On each of these occasions counsel for defendant objected and moved to strike. The testimony which the defendant finds objectionable was not solicited by the State. In fact the Solicitor admonished the witness to "Stop right there!" The court did not rule on either of the objections, therefore, in effect they were overruled.

Shortly thereafter the witness testified, "He would cut me because he had tried to kill me several times before. He has been found guilty on assault charges before." Upon objection by the defendant, the court instructed the jury to disregard the statement and erase it from their minds.

The record before us indicates that in each of the above instances the witness testified at length in response to proper questions by the Solicitor. Most of the statement objected to was clearly admissible. The rule is well settled that general objections will not be entertained if the evidence consists of several distinct parts, some of which are competent and others not. In such case the objector must specify the grounds of the objection, and it must be confined to the incompetent evidence. Unless this is done he cannot afterwards single out and assign as error the admission of that part of the evidence which was incompetent. State v. Tyson, 242 N.C. 574, 89 S.E.2d 138; Nance v. Western Union Telegraph Co., 177 N.C. 313, 98 S.E. 838; State v. Ledford, 133 N.C. 714, 45 S.E. 944.

Even if we were to assume that the objection had been properly taken, the admission of the testimony was rendered harmless when the defendant offered similar testimony. It is a well-established rule in the courts of this State that an objection to evidence, even though seasonably made upon a sound ground, is waived when like evidence is thereafter admitted without objection, and especially so where like evidence is subsequently offered by the objecting party himself. State v. Williams, 274 N.C. 328, 163 S.E.2d 353; State v. McDaniel, 272 N.C. 556, 158 S.E.2d 874. It is true that one does not waive an objection or motion to strike otherwise sound and seasonably made, by offering evidence for the purpose of impeaching the credibility or establishing the incompetency of the testimony in question. State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766. Here, however, the defendant on direct examination as a witness for himself testified that he had previously been convicted of assault on his wife on two occasions and that he was under a court order not to "contact" his wife. He further testified that he had been "charged six or seven times. * * * [E]very time I was in contact with her, I was in court."

*102 The defendant's evidence does not tend to contradict or explain evidence to which he had earlier objected. On the other hand it confirms and goes beyond that which the prosecutrix related. Other testimony of the defendant tended to show: he was very interested in obtaining custody of the children; he had gone to great lengths to avoid contact with his wife since being placed under the court order; and, "she would have to break his leg to catch him the next time." It may well be that the defendant reasoned that evidence as to his previous legal encounters as a result of being in contact with his wife would tend to convince the jury that he had ample reason to avoid her presence. His defense was that he not only did not go to her home on the night in question but did not even know where she lived. At any rate his testimony had the effect of curing any possible error in the admission of the testimony by the prosecutrix as to the previous convictions for assault upon her.

The defendant assigns as error the failure to instruct the jury that it might return a verdict of simple assault. This contention is without merit.

The defendant testified that he was twenty-four years old. There was evidence tending to show that the defendant pushed and struck the prosecutrix prior to picking up the knife. An assault on a female, committed by a man or boy over eighteen years of age, is not a simple assault; it is a misdemeanor punishable in the discretion of the court. State v. Jackson, 226 N.C. 66, 36 S.E.2d 706; State v. Floyd, 241 N.C. 298, 84 S.E.2d 915.

The defendant was convicted of an assault with a deadly weapon, which is also a misdemeanor punishable in the discretion of the court. G.S. § 14-33. Therefore, if it be conceded that the evidence did warrant an instruction to the effect that the jury might return a verdict of guilty of an assault on a female, prejudicial error has not been shown. Where in a prosecution for assault with a deadly weapon the evidence tends to show assault on a female at least, it is not error to fail to submit the question of guilt of simple assault. State v. Church, 231 N.C. 39, 55 S.E.2d 792.

The defendant's final assignment of error relates to a portion of the judge's instructions to the jury on the law of assault.

In North Carolina, there is no statutory definition of assault and the crime remains one governed by the rules of the common law. The judge correctly instructed the jury on the general common law rule that an assault is an intentional offer or attempt by force and violence to do injury to the person of another. State v. Hefner, 199 N.C. 778, 155 S.E. 879. Under this definition the emphasis appears to be on the actions and state of mind of the accused.

Court decisions in this and other states have developed a second and broadened rule so that "[a] show of violence, causing `the reasonable apprehension of immediate bodily harm' * * * whereby another is put in fear, and thereby forced to leave a place where he has a right to be, is sufficient to make out a case of an assault." State v. Allen, 245 N.C. 185, 95 S.E.2d 526.

Thus there are two rules under which a person may be prosecuted for assault in North Carolina. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303. It is difficult in practice to draw the precise lines which separate violence menaced from violence begun to be executed. In State v. Allen, supra, the Supreme Court, speaking through Parker, J., (now C.J.), stated: "The rules of law in respect to assaults are plain, but their application to the facts is sometimes fraught with difficulty. Each case must depend upon its own peculiar circumstances." Where, as under the circumstances of this case, the defendant slaps his victim and then takes a knife and jabs it at her throat, this is violence begun to be executed and the assault is complete.

*103 The defendant could not have been prejudiced by the additional instructions of the court relating to the apprehension of the victim and the person who shoved her out of the area of danger. This is especially true since the defendant does not attempt to mitigate, excuse or explain the actions attributed to him but instead contends that he was not in the presence of his wife and that nothing took place between them on the night in question.

An examination of the entire charge of the court reveals that the judge committed no prejudicial error in declaring and explaining the law arising on the evidence in this case.

In the entire trial we find

No Error.

BROCK and BRITT, JJ., concur.