State v. Smith

198 S.E.2d 52 (1973)

19 N.C. App. 158

STATE of North Carolina v. Paul Grier SMITH.

No. 736SC442.

Court of Appeals of North Carolina.

August 1, 1973.

Certiorari Denied October 2, 1973.

*53 Atty. Gen. Robert Morgan by Asst. Atty. Gen., James E. Magner, Raleigh, for the State.

Hux & Livermon by James S. Livermon, Jr., Enfield, for defendant.

Certiorari Denied by Supreme Court October 2, 1973.

BROCK, Judge.

Defendant assigns as error that the trial judge permitted, over objection, the following question by the Solicitor and answer by the State's witness:

Defendant's motion to strike was also denied.

There were no further questions or testimony about threats, and the above question and answer were not clarified in any way. Presumably the Solicitor intended to create the impression that defendant had called the State's witness on the telephone and made threats against him if he testified against defendant. However, the question and answer fall short of properly connecting defendant so as to make the question competent. Where a defendant threatens or otherwise intimidates a State's witness in an effort to prevent such witness from testifying against defendant, the fact of the threat or intimidation may be shown in evidence. But it must be shown that defendant made the threat or was privy to it. Annot., 62 A.L.R. 136.

Defendant's objection to the foregoing question should have been sustained, and the trial court having failed in this, it should have allowed defendant's motion to strike. Nevertheless, because of the strong eyewitness evidence against the defendant, we do not conceive that the question and answer were of sufficient import to prejudice defendant's trial. Appellant must show prejudice as well as error. This assignment of error is overruled.

Counsel for defendant has brought forward numerous assignments of error to the trial judge's instructions to the jury. There are some errors pointed out, but they appear to us to be inconsequential. We do not feel that a discussion of these numerous exceptions would serve any valid purpose. We have considered the judge's charge as a whole, and in our opinion, the jury could not have been misled in the application of the law to the evidence or as to its duty. In our opinion defendant had a fair trial, free from prejudicial error. The assignments of error to the charge of the court are overruled.

The remaining assignments of error are formal and are overruled.

No error.

MORRIS and VAUGHN, JJ., concur.