State v. Gunn

211 S.E.2d 508 (1975)

24 N.C. App. 561

STATE of North Carolina v. Louis GUNN.

No. 7427SC920.

Court of Appeals of North Carolina.

February 5, 1975.

Certiorari Denied April 2, 1975.

*509 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. James E. Delany, Raleigh, for the State.

*510 Childers & Fowler by Max L. Childers and Henry L. Fowler, Jr., Mount Holly, for defendant appellant.

Certiorari Denied by Supreme Court April 2, 1975.

HEDRICK, Judge.

On the cross-examination of the prosecuting witness, Terry Pruitt, the trial court sustained an objection by the State to the following question:

"Q. And I'll ask you if you haven't been putting out feelers to see if Louis wouldn't pay you some money, isn't that right?"

Defendant contends this was prejudicial error as he was attempting to establish bias on the part of the State's witness. We do not agree.

Although wide latitude is allowed a defendant on cross-examination to show the bias or hostility of a State's witness against the defendant, the trial judge does have some discretion to confine the cross-examination within reasonable limits. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974). In the case at bar, the record does not disclose what Pruitt would have said had he been permitted to answer the question. Furthermore, based upon the issues involved in the case, it is not at all clear whether an affirmative response would have directly challenged the disinterestedness or credibility of the State's witness. State v. Carey, supra. Therefore, we are unwilling to say that the trial judge abused his discretion. The burden is on appellant not only to show error but to show prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972). See also, State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971), vacated and remanded on other grounds, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764.

Defendant also contends the trial court erred in its instructions to the jury with respect to his defense of intoxication in that the court only related the defense to an intentional or willful shooting and not to a shooting arising from wanton conduct on the part of the defendant. He, therefore, argues that the trial judge permitted the jury to find him guilty without determining whether he had the specific intent to discharge a firearm into an occupied dwelling. We do not agree.

G.S. § 14-34.1 provides: "Any person who wilfully or wantonly discharges a firearm into or attempts to discharge a firearm into any building . . . while it is occupied is guilty of a felony punishable as provided in § 14-2." [Emphasis ours.]

"The attempt to draw a sharp line between a `wilful' act and a `wanton' act in the context of G.S. 14-34.1 would be futile. The elements of each are substantially the same. We hold that a person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons." State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973).

Here, the trial judge explained to the jury the meaning of a "wilful" and a "wanton" act. However, he also specifically instructed the jury that before it could find the defendant guilty it must find beyond a reasonable doubt that the defendant acted "intentionally". This was clearly proper. State v. Williams, supra. The court further instructed the jury that this intent was a specific intent which could be negated by the voluntary intoxication of the defendant. When considered contextually as a whole, the charge to the jury is free from prejudicial error.

The defendant had a fair trial free from prejudicial error.

No error.

BROCK, C. J., and PARKER, J., concur.