State v. Courson

218 S.E.2d 416, 27 N.C. App. 268, 1975 N.C. App. LEXIS 1815

• Court: Court of Appeals of North Carolina
• Decided: October 15, 1975
• Docket: No. 7512SC508
• Status: Published

Opinion

ARNOLD, Judge.

Defendant was tried a day after the trial judge commended the district attorney in the presence of the jury panel for taking a nol pros in another case. Defendant argues that it was error not to allow a continuance because the judge’s remark implied that there was sufficient evidence to convict in his case.

A motion for continuance is addressed to the sound discretion of the trial judge and his ruling is not reviewable absent a manifest abuse of discretion. O’Brien v. O’Brien, 266 N.C. 502, 146 S.E. 2d 500 (1966) ; Johnson v. Johnson, 14 N.C. App. 40, 187 S.E. 2d 420 (1972). The trial judge did not abuse his discretion in denying defendant’s motion for continuance.

Defendant assigns error to the admission of the testimony of Kimberly Anne Yorke. The defendant contends that Miss Yorke was incompetent to testify because of her tender age and because of her lack of comprehension of the nature of the proceedings against her stepfather.

The competency of a witness is addressed to the discretion of the trial court and where the record discloses that upon the voir dire the court inquired into the child’s intelligence and understanding and admitted her testimony upon evidence supporting the conclusion of competency, we will not find that the trial court abused its discretion. State v. Bowden, 272 N.C. 481, 158 S.E. 2d 493 (1968) ; State v. Markham, 20 N.C. App. 736, 202 S.E. 2d 790 (1974).

Defendant further argues that the trial court erred in failing to sustain the objection to a leading question asked by the prosecutor. It is an established rule that it is within the discretion of the trial court to permit counsel to ask leading questions. State v. Johnson, 272 N.C. 239, 158 S.E. 2d 95 (1967); State v. Westmoreland, 12 N.C. App. 357, 183 S.E. 2d 265 (1971) ; McKay v. Bullard, 219 N.C. 589, 14 S.E. 2d 657 (1941). Considering the youth of the witness and the sensitivity of the issue, we find that the trial judge did not abuse his discretion.

Finally, defendant contends that the trial court erred in failing to sustain objections as to prior acts of the defendant. It is generally recognized that evidence of other crimes may not be introduced for the purpose of showing the accused to be a man of bad character likely to commit the crime charged. However, in the present case the evidence was properly admitted to show intent, state of mind or design, and motive. State v. Hartsell, 272 N.C. 710, 158 S.E. 2d 785 (1968) ; State v. Spain, 3 N.C. App. 266, 164 S.E. 2d 486 (1968).

We have carefully reviewed all defendant’s remaining assignments of error. Defendant received a fair trial, free, of prejudicial error.

No error.

Judges Moréis and Hedrick concur.