State v. . Hunt

25 S.E.2d 598, 223 N.C. 173, 1943 N.C. LEXIS 232

• Court: Supreme Court of North Carolina
• Decided: May 19, 1943
• Status: Published

Opinion

WiNBORNB, J.

Careful consideration of the several assignments of error upon which defendants challenge the judgments below fails to indicate prejudicial error.

Exceptions 2 and 3 are taken to the denial by the court of motions of defendant Hunt (1) to strike out testimony of witness as to what appeared upon the person of this defendant when examined by a doctor on.the night of the alleged crime, as set forth in the narrative herein, and (2) that court instruct the jury to disregard such testimony. In this connection it appears of record that these motions were not made until the State had rested its case, and that the ground assigned by the court for denying each motion is that no objection was made to the testimony at the time it was elicited from the witness. In these rulings we find no error. The competency of such evidence finds support in the case of S. v. Cash, 219 N. C., 818, 15 S. E. (2d), 277. But, if it be conceded that the testimony offered is incompetent, objection thereto should have been interposed to the question at the time it was asked as well as to the answer when given. An objection to testimony not taken in apt time is waived. S. v. Merrick, 172 N. C., 870, 90 S. E., 257. Afterward, a motion to strike out the testimony, to which no objection was aptly made, is addressed to the discretion of the trial judge, and his ruling in the exercise of such discretion, unless abuse of that discretion appears, is not subject to review on appeal. S. v. Merrick, supra; S. v. Pitts, 177 N. C., 543, 98 S. E., 767.

The exceptions 4 and 5 to refusal to grant motions for judgment as in case of nonsuit, C. S., 4643, as well as number 6, directed to a portion of the charge, are referred to in the brief for defendants as “formal exceptions.” No argument is made and no authority is cited in support thereof. Hence, they are deemed abandoned. See Rule 28 of the Rules of Practice in the Supreme Court, 221 N. C., 562, at 563. S. v. Rowley, 220 N. C., 113, 16 S. E. (2d), 705. However, the exceptions are without merit.

Exceptions 7, 12 and 16 are to portions of the charge in which the-court instructed the jury that under an indictment for rape, and under the evidence and law in this case, one of five verdicts, rape, assault with intent to commit rape, assault with a deadly weapon, assault on a woman by a man over the age of eighteen years, and not guilty, may be returned as to each defendant. The objection thereto is that “the instructions . . . omit any reference to the rule of reasonable doubt.” It appears of record, however, that the court fully, clearly and correctly instructed the jury as to the presumption of innocence with which defendants are clothed, and as to the burden being upon the State to prove the guilt of defendants beyond a reasonable doubt before they could be convicted of any offense. Thus, when the portions of the charge to which these exceptions relate are read in connection with that which precedes and with that which follows, there is no conflict, or room for misunderstanding, and no error is made to appear. S. v. Utley, ante, 39.

In closing the charge the court instructed the jury: “(You may retire, make up your verdict and let your verdict, gentlemen, reflect light, not heat, in the expression of truth and say by your verdict whether you find the defendant, Harvey Hunt, guilty of the crime of rape, or guilty of the crime of assault with intent to commit rape, or guilty of an assault with a deadly weapon, or guilty of an assault upon a female, he being a male person over 18 years of age; and say by your verdict whether you find the defendant, Purcell Smith, guilty of the crime of rape, or guilty of the crime of assault with intent to commit rape, or guilty of an assault with a deadly weapon, or guilty of an assault upon a female, he being a male person over 18 years of age, or not guilty.) Retire gentlemen and say how you find.” Exception 15 is directed to the portion in parentheses— particularly in that among the verdicts which may be rendered as to defendant Hunt, that of “not guilty” is not included. However, the record shows that the jury was recalled to the courtroom and that then the court again instructed the jury “that you may find the defendant, Harvey Hunt, guilty of the crime of rape as charged, or you may acquit him of that, or find him guilty of an assault with intent to commit rape, or you may acquit him of that, or find him guilty of an assault with a deadly weapon or you may acquit him of that, and find him guilty of an assault upon a female, he being a male person over 18 years of age, or you may return a verdict of not guilty.” And like instruction was given as to defendant Smith. Under these circumstances it is clear that the jury could not have understood that a verdict of “not guilty” could not be rendered. No prejudicial error is made to appear.

Several other excerpts from the charge are assigned as error. If any of these, isolated from the rest of the charge, be conceded to be subject to challenge, when they are read contextually with the portions óf the charge which precede and which follow no error appears. S. v. Utley, supra. Seratim, consideration of such assignments would only consume space without serving a useful purpose.

In fine, the State’s evidence'on which defendants were tried, as shown in the record on this appeal, manifests in them a spirit of ruthless indifference to the rights of others, and of pitiless atrociousness. The evidence as to every element of the crime alleged is sufficient to support a verdict of guilty as charged. The record shows that the case was .fairly presented to the jury in a trial free from prejudicial error.

In the trial and judgments on the verdict there is

No error.