State v. Hamm

263 S.E.2d 556 (1980)

STATE of North Carolina v. Joseph Lee HAMM.

No. 15.

Supreme Court of North Carolina.

March 5, 1980.

*558 Rufus L. Edmisten, Atty. Gen. by Ben G. Irons, II, Asst. Atty. Gen., Raleigh, for the State.

Glenn B. Bailey, Morehead City, for defendant-appellant.

HUSKINS, Justice:

Leo Sutton testified that he was under arrest for armed robbery and had not been charged with murder. Over objection, he was permitted to say that he knew he could have been charged with murder. Defendant contends that Sutton, who was not learned in the law, was erroneously permitted to express an opinion as to what crimes he might be charged with as a result of his participation in the robbery and murder of Mrs. Arthur. This contention is without merit. When the record is read contextually, it is clear that Leo Sutton was not being asked to give an opinion. Rather, he was being asked whether he had been informed by the authorities that he could have been charged with other crimes. This is clear from the testimony immediately following Sutton's assertion that he knew he could have been charged with murder: "No one promised me anything to testify, and no one has told me what to say and no one has threatened me." In effect, Sutton was testifying that his testimony was in no way affected by the State's decision not to charge him with murder. Thus, the purpose of the testimony in question was to establish the credibility of the witness, not to elicit an opinion on a question of law.

*559 The fact that Sutton's knowledge of the potential murder charges may have been based on the out-of-court declarations of law enforcement officials does not render his testimony inadmissible. Sutton was not testifying as to the truth of these declarations; rather, he was testifying as to his awareness that he could have been charged with murder. This constitutes a a permissible non-hearsay use of out-of-court declarations. State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978). Accord, 1 Stansbury, N.C. Evidence, § 149 at pp. 469-70 (Brandis Rev. 1973). In any event, review of the record indicates that defendant's objection to the testimony in question was not timely made. The objection was not made until the question was put and the answer given. Only then did defendant object and move to strike the answer. This came too late. Accordingly, defendant has waived his right to assign as error the admission of the testimony in question. See, 1 Stansbury, supra, § 27 at p. 69 and cases cited therein. Defendant's first assignment of error is overruled.

Defendant assigns as error the denial of his motions to set aside the verdict and for a new trial based upon insufficiency of the evidence.

Motions to set aside the verdict and for a new trial based upon insufficiency of the evidence are addressed to the discretion of the trial court and refusal to grant them is not reviewable on appeal in the absence of abuse of discretion. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, cert. dismissed, 423 U.S. 918, 96 S. Ct. 228, 46 L. Ed. 2d 367 (1975); State v. Lindley, 286 N.C. 255, 210 S.E.2d 207 (1974). Review of the record indicates there was substantial evidence to take the case to the jury on second degree murder. Hence, no abuse of discretion has been shown.

It was stipulated that the cause of Eleanor B. Arthur's death was a shotgun wound to her chest. There was plenary, competent evidence that defendant inflicted that wound. Thus, the evidence is abundantly sufficient to repel a motion for nonsuit and to carry the case to the jury and to support the verdicts rendered. Defendant challenges the testimony of his accomplice Leo Sutton, but the law in this jurisdiction is settled that the unsupported testimony of an accomplice is sufficient to convict if it satisfies the jury beyond a reasonable doubt of the guilt of the accused. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Terrell, 256 N.C. 232, 123 S.E.2d 469 (1962); State v. Saunders, 245 N.C. 338, 95 S.E.2d 876 (1957). Moreover, the testimony of Sutton is not entirely unsupported. To the contrary, there is much circumstantial evidence which coincides with, dovetails, and corroborates Sutton's testimony.

The evidence of defendant's guilt of murder in the first degree is strong and convincing. He is the beneficiary of an election by the State to try him only for murder in the second degree. No prejudicial error has been shown in his trial. Hence, the verdict and judgments pronounced will not be disturbed.

NO ERROR.