State v. Davis

252 S.E.2d 30, 40 N.C. App. 68, 1979 N.C. App. LEXIS 2567

• Court: Court of Appeals of North Carolina
• Decided: February 20, 1979
• Docket: No. 7818SC832
• Status: Published

Opinion

VAUGHN, Judge.

Defendant directs his first assignment of error to the trial court’s failure to declare a mistrial following an answer given by Hawthorne while he was being cross-examined by defendant’s counsel. In response to the question, “have you been tried and convicted of armed robbery before?” Hawthorne replied, “Yes, me and Garcia Davis both.” Defendant immediately moved for a mistrial. In non-capital criminal cases, the granting or refusal of a motion for mistrial rests within the discretion of the judge, and his ruling thereon is not reviewable without a showing of an abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972). No abuse of discretion has been shown in this case. Furthermore, the defendant himself testified on cross-examination that he had previously been convicted of armed robbery. When evidence is admitted over objection, but the same evidence is later admitted without objection, the objection is waived. State v. Carey, 288 N.C. 254, 218 S.E. 2d 387 (1975); State v. Little, 278 N.C. 484, 180 S.E. 2d 17 (1971). This assignment of error is overruled.

Defendant next contends that the trial court erred in charging the jury on the “theory of acting in concert” rather than charging on the “theory of aiding and abetting.” The assignment of error is without merit. The evidence discloses that defendant formulated the robbery plan, recruited Hawthorne to assist him, furnished the gun, acted as “lookout” and drove the getaway car. Not only was he present at the scene, but also he was an active participant in the robbery. The judge gave the proper instructions.

Defendant has failed to show prejudicial error.

No error.

Judges MARTIN (Robert M.) and ARNOLD concur.