State v. Cox

157 S.E.2d 717 (1967)

272 N.C. 140

STATE of North Carolina v. Merrell COX.

No. 664.

Supreme Court of North Carolina.

November 29, 1967.

*718 Thomas Wade Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., T. Buie Costen, Staff Atty., Raleigh, for the State.

W. Ritchie Smith, Jr., Fayetteville, for defendant appellant.

PER CURIAM:

The defendant insists a verdict of not guilty should have been entered at the close of the evidence, or if the Court should hold the evidence sufficient to go to the jury, then he contends he is entitled to a new trial because of errors by the Court: (1) in allowing Sheriff Barrington to go beyond the bounds of proper corroboration; and (2) by permitting the Solicitor to elicit from the defendant the fact he had been fined, and ordered to stay out of the County.

The evidence on the part of the state made out a case for the jury. We do not care to recite the details. The jury heard the stories of State's witnesses and the defendant's denial. The jury believed the State's evidence. The Sheriff's testimony in corroboration was substantially the same as the boy's evidence before the Court and jury. While there was some deviation in language, in essence there was harmony. There was consistency throughout as to the acts described by the witness to the jury and as told to the Sheriff and repeated by him to the jury. Discrepancy in minor details does not warrant a new trial. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354.

The defendant's final objection grows out of the Solicitor's question and the defendant's answer during cross-examination. "Q Now, in the trespassing case, * * * in which you were tried and convicted on January 17, 1961, in which you were ordered to stay out of the County (objection by defendant)for a period of two years and pay the cost * * * is that correct? A Yes, sir. That is when I financed an ice cream business up there and had it all paid for and they had no more use for me, just like now, and pushed me out." (The boy's mother was the complainant in the trespass case.) There was objection before the question was completed and before the answer was in. The Court, however, failed to rule on the objection. There was no motion to strike and no further objection. Apparently counsel was willing for the question and answer to stay in since defendant stated that the wife was a prosecutor in a trespass case and that banishment was an effort to get rid of him. Banishment is unlawful. Evidence of it was incompetent unless it fitted into a planned effort on the part of the boy's mother to rid herself of the defendant. In that light, defense counsel appears to have been satisfied not to press the objection after the question was completed and the answer was in. He likewise could have moved to strike, but failed to do so. Counsel may well have considered the disclosure helpful as tending to show an effort to get rid of the defendant and that this present case is a continuation of that effort. Prejudice is not shown.

No error.