State v. Penny

193 S.E.2d 333, 17 N.C. App. 147, 1972 N.C. App. LEXIS 1598

• Court: Court of Appeals of North Carolina
• Decided: December 20, 1972
• Docket: No. 7210SC835
• Status: Published

Opinion

BRITT, Judge.

Defendant’s first assignment of error is to the failure of the trial judge to grant his motion for a mistrial based on allegedly improper and prejudicial testimony by the arresting officer. The record reveals:

“I (Officer McLeod) went back to Mr. Penny where he and I had a conversation about this was going to be his driver’s license because he had just been tried—

Mr. Churchill: Objection.

A. —on a case in Hillsborough.

Court: Sustained.

Mr. Churchill: I move for a mistrial.

Court: Motion por a Mistrial Denied. Do not consider the statement that the witness just made. Has nothing to do with the case.”

The incident complained of occurred while the witness was providing rebuttal testimony for the State. Defendant had theretofore testified as a witness for himself and had stated: “I have one ticket for 70 in a 60 and one for 68 in a 60 and one careless and reckless in April, 1970. ... I have not been convicted of any offense since March 28,1971.”

We do not think defendant was prejudiced by the incident, particularly in view of the court’s admonition to the jury. See State v. Battle, 269 N.C. 292, 152 S.E. 2d 191 (1967); also, State v. Smith, 5 N.C. App. 505, 168 S.E. 2d 494 (1969). The assignment of error is overruled.

Defendant assigns as error a portion of the jury charge explaining “reasonable doubt.” We have carefully considered this assignment but conclude that it too is without merit.

We hold that defendant had a fair trial, free from prejudicial error.

No error.

Judges Parker and Vaughn concur.