State v. Manuel

231 S.E.2d 588 (1977)

291 N.C. 705

STATE of North Carolina v. Kim Allan MANUEL.

No. 9.

Supreme Court of North Carolina.

January 31, 1977.

*590 Rufus L. Edmisten, Atty. Gen., Claude W. Harris, Asst. Atty. Gen., Raleigh, for State of N. C.

J. Steven Brackett, Hickory, for defendant-appellant.

HUSKINS, Justice:

In his brief and upon oral argument, defendant abandoned all assignments of error except assignments Nos. 3 and 6. Those will be discussed in the order listed.

By his third assignment defendant contends the court erred in permitting the prosecution to elicit evidence by the use of leading questions.

A leading question is one that suggests the desired answer. Frequently, questions that may be answered by "yes" or "no" are regarded as leading. 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 31, and cases there cited. Nevertheless, the trial court has discretionary authority to permit leading questions in proper instances, State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965), and upon defendant's failure to show prejudice such discretionary action by the trial court will not be disturbed. State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353 (1953). ". . . [T]his Court has wisely and almost invariably held that the presiding judge has wide discretion in permitting or restricting leading questions. When the testimony so elicited is competent and there is no abuse of discretion, defendant's exception thereto will not be sustained." State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974). Here, no abuse of judicial discretion is shown. Most of the questions challenged were not leading or else the answers elicited had been received without objection at other points in the testimony. In no event has the defendant been prejudiced. This assignment is overruled.

Failure to nonsuit at the close of the State's evidence constitutes defendant's sixth assignment of error. Such motion requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971). "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled." State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). The Court is not concerned with the weight of the testimony when considering such motion but only with its sufficiency to carry the case to the jury and sustain the indictment. State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). When tested by these principles there is abundant evidence to carry the case to the jury. The motion for compulsory nonsuit was therefore properly denied.

Defendant's motion to set aside the verdict and for a new trial is merely formal and requires no discussion. Such motion is addressed to the discretion of the court, and refusal to grant it is not reviewable. State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960).

Defendant's motion in arrest of judgment is deemed abandoned under Rule 28, Rules of Appellate Procedure, 287 N.C. 671 at 741, since no reason or argument in support of it is set out in defendant's brief.

The Court notes ex mero motu that in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (decided July 2, 1976), the United States Supreme Court invalidated the death penalty provisions *591 of G.S. 14-17 (Cum.Supp.1975), the statute under which defendant was indicted, convicted and sentenced to death. Therefore, by authority of the provisions of the 1973 Session Laws, chapter 1201, section 7 (1974 Session), a sentence of life imprisonment is substituted in lieu of the death penalty in this case.

Our examination of the entire record discloses no error affecting the validity of the verdict returned by the jury. The trial and verdict must therefore be upheld. To the end that a sentence of life imprisonment may be substituted in lieu of the death sentence heretofore imposed, the case is remanded to the Superior Court of Catawba County with directions (1) that the presiding judge, without requiring the presence of defendant, enter a judgment imposing life imprisonment for the first degree murder of which defendant has been convicted; and (2) that in accordance with said judgment the clerk of superior court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the clerk furnish to defendant and his counsel a copy of the judgment and commitment as revised in accordance with this opinion.

NO ERROR IN THE VERDICT.

DEATH SENTENCE VACATED.