State v. Fulcher

Court of Appeals of North Carolina

State v. Fulcher

201 S.E.2d 223, 20 N.C. App. 259, 1973 N.C. App. LEXIS 1532

CourtCourt of Appeals of North Carolina

DecidedDecember 19, 1973

DocketNo. 7317SC660

StatusPublished

This text of 201 S.E.2d 223 (State v. Fulcher) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fulcher, 201 S.E.2d 223, 20 N.C. App. 259, 1973 N.C. App. LEXIS 1532 (N.C. Ct. App. 1973).

Pincite

Opinion

CAMPBELL, Judge.

The defendant complains that it was error to admit seven color slides used by the medical examiner to explain and illustrate his testimony. Defendant asserts they were too grotesque, inflammatory and repetitious. We are aware of the decisions in State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1968) and State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). However, we feel that this case is controlled by the general rule that the mere fact that the photographs may be gory, gruesome, revolting or horrible, does not prevent their use by a witness to illustrate his testimony. State v. Sallie, 13 N.C. App. 499, 186 S.E. 2d 667 (1972), cert. denied, 281 N.C. 316, 188 S.E. 2d 900 (1972); State v. Cutshall, 278 N.C. 334, 180 S.E. 2d 745 (1971); State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1967); [261]*261State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824 (1948); “Admissibility of Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing Death,” 73 A.L.R. 2d 769 (1960).

The defendant next assigns as error the admission into evidence of his conviction for the prior beating of the deceased with a hammer after the defendant had caught the deceased with another man. The defendant asserts that this evidence is inadmissible as tending only to show the identity of the accused. The defendant concedes that this evidence of prior crime would be admissible to show quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence in respect to the matter on trial, when such crimes are so connected with the offense charged as to throw light on one or more of these questions. Cases discussing this concept are State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972) and State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). We agree with these cases and hold that the evidence was properly admitted.

The defendant next assigns as error the admission into evidence of the hammer found on the scene for that there is no relevant connection between the hammer, the accused, and the decedent. It is true that there was no evidence specifically identifying the hammer as the murder weapon. However, the hammer was found at the scene; there were circular bruise marks over the body of the deceased, and the defendant had previously beaten the deceased with a hammer. The hammer was clearly a part of the chain of circumstances tending to show appellant’s guilt. See Stansbury’s North Carolina Evidence, Brandis Revision, § 118, p. 356, N. 10, 11 and 12 (1973).

Finally, the defendant assigns as error the denial of his motion for judgment as of nonsuit. Taking the evidence in the light most favorable to the State, we find it to be sufficient.

The charge to the jury is not in the record; and accordingly, we presume it was adequate, full and correct.

We have reviewed the defendant’s other assignments of error and find them to be without merit.

No error.

Judges Britt and Morris concur.

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CAMPBELL, Judge.

The defendant complains that it was error to admit seven color slides used by the medical examiner to explain and illustrate his testimony. Defendant asserts they were too grotesque, inflammatory and repetitious. We are aware of the decisions in State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1968) and State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). However, we feel that this case is controlled by the general rule that the mere fact that the photographs may be gory, gruesome, revolting or horrible, does not prevent their use by a witness to illustrate his testimony. State v. Sallie, 13 N.C. App. 499, 186 S.E. 2d 667 (1972), cert. denied, 281 N.C. 316, 188 S.E. 2d 900 (1972); State v. Cutshall, 278 N.C. 334, 180 S.E. 2d 745 (1971); State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1967); [261]*261State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824 (1948); “Admissibility of Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing Death,” 73 A.L.R. 2d 769 (1960).

The defendant next assigns as error the admission into evidence of his conviction for the prior beating of the deceased with a hammer after the defendant had caught the deceased with another man. The defendant asserts that this evidence is inadmissible as tending only to show the identity of the accused. The defendant concedes that this evidence of prior crime would be admissible to show quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence in respect to the matter on trial, when such crimes are so connected with the offense charged as to throw light on one or more of these questions. Cases discussing this concept are State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972) and State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). We agree with these cases and hold that the evidence was properly admitted.

The defendant next assigns as error the admission into evidence of the hammer found on the scene for that there is no relevant connection between the hammer, the accused, and the decedent. It is true that there was no evidence specifically identifying the hammer as the murder weapon. However, the hammer was found at the scene; there were circular bruise marks over the body of the deceased, and the defendant had previously beaten the deceased with a hammer. The hammer was clearly a part of the chain of circumstances tending to show appellant’s guilt. See Stansbury’s North Carolina Evidence, Brandis Revision, § 118, p. 356, N. 10, 11 and 12 (1973).

Finally, the defendant assigns as error the denial of his motion for judgment as of nonsuit. Taking the evidence in the light most favorable to the State, we find it to be sufficient.

The charge to the jury is not in the record; and accordingly, we presume it was adequate, full and correct.

We have reviewed the defendant’s other assignments of error and find them to be without merit.

No error.

Judges Britt and Morris concur.

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201 S.E.2d 223, 20 N.C. App. 259, 1973 N.C. App. LEXIS 1532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fulcher-ncctapp-1973.

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