State v. . Sterling

156 S.E. 96, 200 N.C. 18, 1930 N.C. LEXIS 8

• Court: Supreme Court of North Carolina
• Decided: December 10, 1930
• Status: Published

Opinion

Connor, J.

Miss Georgia Brown, sister of tbe deceased, John Brown, and tbe only witness for tbe State, as shown by all tbe evidence, "who was present at tbe time tbe deceased was shot and killed, testified that tbe man who shot and killed tbe deceased bad a beard, of apparently three or four days growth, on bis face. All tbe evidence was to tbe effect tbat at tbe time of bis arrest, which was within a few hours after tbe homicide, tbe defendant, Lancey Sterling, who was identified by Miss Brown as tbe man who shot her brother, bad no beard on bis face. Tbe evidence for tbe State tended to show tbat be bad recently shaved. Tbe evidence for tbe defendant was to tbe contrary. One of tbe officers who made tbe arrest, in bis direct testimony, said: “Lancey’s face appeared to me as tbe face of a man tbat bad taken a hasty shave with a dull razor in cold water.”

Tbe case on appeal does not show tbat this statement was made by the witness in response to a specific question addressed to tbe witness by tbe solicitor. The record shows tbat counsel for defendant objected to tbe statement, saying: “Tbat is merely an opinion.” To this tbe court replied: “Tbat is what has been called a shorthand statement of facts.” To this defendant excepted. His assignment of error based on this exception cannot be sustained. As was said in S. v. Skeen, 182 N. C., 844, 109 S. E., 71, this was only a shorthand method of giving the facts as they appeared to tbe witness. In tbat case, tbe statement of tbe witness, in describing tbe appearance of tbe defendant, was, “His clothes were damp — shoes muddy — looked like. Didn’t look like they bad been unlaced in several days.” It was held tbat it was proper for tbe witness to state tbe instantaneous conclusion of bis mind, from bis observation of a variety of facts presented to bis senses at one and the same time. Tbe principle is stated and approved in Willis v. New Bern, 191 N. C., 507, 132 S. E., 286. See, also, S. v. Gray, 180 N. C., 697, 104 S. E., 647; S. v. Bryant, 178 N. C., 702, 111 S. E., 430; S. v. Harden, 177 N. C., 580, 98 S. E., 782; S. v. Spencer, 176 N. C., 709, 97 S. E., 155; S. v. Leak, 156 N. C., 643, 72 S. E., 567. In tbe last ease cited, tbe principle as stated in McKelvey on Evidence, p. 220, &i seq., is approved by tbis Court. On tbis principle there was no error in overruling defendant’s objection to tbe statement of tbe witness on tbe ground that it was merely an expression of bis opinion. In passing upon tbis assignment of error, we interpret tbe record as showing in effect that defendant’s counsel moved to strike out tbe statement, and that tbe motion was denied.

Tbe sole question involved in tbe issue submitted to tbe jury at tbe trial of tbis action was one of identity. Tbe uncontradicted evidence for tbe State shows that tbe homicide was murder. There was no evidence tending to show that tbe homicide was manslaughter, or that it was justifiable or excusable. All tbe evidence showed that the murder was committed in an attempt to perpetrate a felony, to wit, robbery. Tbe homicide was, therefore, murder in tbe first degree, as defined by statute. C. S., 4200. On tbe authority of S. v. Spivey, 151 N. C., 676, 65 S. E., 995, approved' in S. v. Newsome, 195 N. C., 552, 143 S. E., 187, tbe court might well have so instructed tbe jury, leaving tbe question as to tbe guilt of tbe defendants to be determined by tbe jury, under tbe instructions of tbe court, from tbe evidence. There was conflicting evidence as to tbe identity of tbe defendants, as tbe men who committed tbe murder, while attempting to perpetrate a robbery. Tbis evidence was submitted to tbe jury under a charge which we find free from error. Slight inaccuracies in tbe statement of tbe evidence by tbe court in its charge to tbe jury, not called to its attention at tbe time, cannot be held as prejudicial error. In tbe instant case tbe charge was in substantial compliance with C. S., 564. Tbe contentions of each defendant, as well as those of tbe State, upon tbe conflicting evidence, were fully and fairly stated by tbe court. Tbe verdict is fully supported by tbe evidence, and we find no error in tbe record, for which either defendant is entitled to a new trial. Tbe judgment is affirmed.

No error.