State v. Adams

95 S.E.2d 902 (1957)

245 N.C. 344

STATE v. Del ADAMS.

No. 506.

Supreme Court of North Carolina.

January 11, 1957.

*904 George B. Patton, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

L. L. Levinson and Harry E. Canady, Smithfield, for defendant.

*905 DENNY, Justice.

Assignments of error Nos. 3 and 5 are based on the defendant's exceptions to the failure of the court below to sustain his motion for judgment as of nonsuit. The evidence disclosed by the record in this case is ample to sustain the verdict rendered by the jury in the trial below. These assignments of error are without merit.

Assignment of error No. 1 is based on a number of exceptions, each one having been taken to the admission of evidence relating to the defendant's activities as a dealer in and manufacturer of illicit whiskey, or to the defendant's statements in connection therewith. The defendant contends that this evidence constitutes an attack on his character and was inadmissible unless the defendant testified and offered evidence of his good character, citing Stansbury, North Carolina Evidence, section 104; State v. Nance, 195 N.C. 47, 141 S.E. 468; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; State v. McLamb, 235 N.C. 251, 69 S.E.2d 537.

We concede that if the State had offered the evidence complained of for the purpose of showing the bad character of the defendant, the objection raised would have some merit. However, it is apparent from the record in this case that the evidence was offered for the purpose of showing ill will towards the deceased and a motive for the killing. The evidence complained of was admissible for that purpose, and the defendant made no request that it be so restricted. State v. Walker, 226 N.C. 458, 38 S.E.2d 531; State v. Turberville, 239 N.C. 25, 79 S.E.2d 359; State v. Eason, 242 N.C. 59, 86 S.E.2d 774. There is nothing to indicate that the evidence under discussion was introduced or used for the purpose of showing the character of the defendant or to prejudice him before the jury. State v. Moore, 104 N.C. 743, 10 S.E. 183; State v. Artis, 227 N.C. 371, 42 S.E.2d 409. Furthermore, Rule 21 of the Rules of Practice in the Supreme Court, 221 N.C. 558, among other things, provides, "Nor will it be ground of exception that evidence competent for some purposes but not for all, is admitted generally, unless the appellant asks, at the time of admission, that its purpose shall be restricted."

In the case of State v. Wilcox, 132 N.C. 1120, 44 S.E. 625, 633, this Court said: "`In the administration of the criminal law, any fact shedding light upon the motives of the transaction will not be excluded from the consideration of the jury, whether it goes to the attestation of innocence or points to the perpetrator of the crime.' * * * A man's motive may be gathered from his acts, and so his conduct may be gathered from the motive by which he was known to be influenced. Proof that the party accused was influenced by a strong motive of interest to commit the offense proved to have been committed although weak and inconclusive in itself, yet it is a circumstance to be used in conjunction with others which tend to implicate the accused."

It will be noted that about two weeks before the defendant killed the deceased, he made a statement to a number of persons that if anybody accused him of making or selling whiskey he was going to "blow their dheads off"; and the defendant mentioned the name of the deceased in connection with that statement or threat. State v. Smith, 225 N.C. 78, 33 S.E.2d 472; State v. Artis, supra; State v. Fowler, supra; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664.

Moreover, when the defendant went on the stand he testified on direct examination with respect to the number of times he had been convicted for violation of the liquor laws, and also stated that at the time of the shooting he had a 100 gallon copper still over in the Cole field. His evidence, when compared with the matters complained of, went far beyond the State's evidence. The State offered no evidence of a former conviction of the defendant of any specific crime; its evidence did show that the defendant *906 was under indictment, charged with having nontax-paid whiskey in his possession, and that it was in connection with this charge that the defendant made the statement threatening to kill anyone who accused him of making or selling whiskey. The evidence also tends to show that it was in connection with this charge that the defendant's wife admitted on cross-examination that he "was ranting about the man who reported him for making whiskey." She also testified that she had "found out he had been reported about the distillery."

The defendant did deny, however, having threatened to kill anyone who interfered with his liquor business, but he did not deny that he had been constantly engaged in that business; in fact, he testified that he had been "raised up in the liquor business," and that he had "been sentenced to prison, but it didn't stop me from bootlegging."

Exceptions by the defendant to evidence of a State's witness will not be sustained where the defendant or his witness testifies, without objection, to substantially the same facts. State v. Matheson, 225 N.C. 109, 33 S.E.2d 590.

Likewise, the admission of evidence as to facts which the defendant admitted in his own testimony, cannot be held prejudicial. State v. Merritt, 231 N.C. 59, 55 S.E.2d 804. This assignment of error is overruled.

The assignments of error relating to the statement of the contentions by the trial judge are, in our opinion, feckless. The defendant does not contend that any of his contentions were omitted or incorrectly stated. State v. DeMai, 227 N.C. 657, 44 S.E.2d 218; State v. Smith, 238 N.C. 82, 76 S.E.2d 363; State v. Sparrow, 244 N.C. 81, 92 S.E.2d 448.

A careful study of the evidence and the charge leads us to the conclusion that the trial judge sufficiently and fairly reviewed the contentions of the defendant.

Other assignments of error based on exceptions in the record have not been brought forward and argued in the defendant's brief. Under Rule 28, Rules of Practice in the Supreme Court, 221 N.C. at page 562, they are deemed abandoned.

In our opinion, the defendant has had a fair trial and the result of the trial below will not be disturbed.

No error.

JOHNSON, J., not sitting.