State v. . Stewart

72 S.E. 193, 156 N.C. 636, 1911 N.C. LEXIS 238

• Court: Supreme Court of North Carolina
• Decided: October 11, 1911
• Status: Published

Opinion

AlleN, J.

We bave examined all of tbe exceptions appearing in tbe record, and find nothing of wbicb tbe defendant can justly complain.

It appears to us tbat be bas been dealt witb mercifully, as tbe evidence would bave sustained a verdict of murder in tbe second degree, if not one in tbe first degree.

Many of tbe exceptions were evidently taken as matter of precaution, during tbe progress of tbe trial, and not witb tbe expectation tbat tbey could be successfully urged as ground for a new trial.

Tbe first three exceptions belong to this class, as tbe witness bad to tell wbat took place at tbe time of tbe difficulty, if permitted to testify at all.

Tbe exception to tbe evidence of McKinley Herring is equally untenable. He was an eye-witness, and tbe objection is to the whole of bis evidence. We do not think any part of bis evidence incompetent; but if it were otherwise, and some of the evidence was competent, and some not, a general objection to tbe whole evidence could not be sustained. S. v. Ledford, 133 N. C., 722.

Tbe exceptions to tbe evidence of Victoria Wright are without merit, and requires no discussion.

It was not necessary to propound a hypothetical question to Hr. Cooper, as be was expressing an opinion as tbe result of his own examination, and not one based on tbe evidence of other witnesses. .

Dr. Sloan, an expert, was asked bis opinion as to tbe cause of death, upon tbe assumption tbat tbe jury found certain facts in evidence to be true.

The defendant objected because one fact, as to which there was evidence, was not incorporated in the question.

We said at the last term, in S. v. Holly, 155 N. C., 485: “It is not necessary in the statement of a hypothetical question lhat all the facts should be stated. Opinions may be asked for upon different combinations of facts, on the examination in chief and on the cross-examination.”

If the defendant thought the fact, which was omitted, would have elicited a different opinion from the witness, it was his right and duty to incorporate it in a question on cross-examination.

The defendant offered Mattie Andrews, a girl eight years old, as a witness. The court refused to permit her to testify, and makes the following statement as to the witness: “The exception in regard to Mattie Andrews was made the first time in the statement of appellant’s case on appeal. The court asked Mattie Andrews who made her; she said she did not know. The court asked her if she knew anything about the obligation of an oath. She said no. The court then asked her what they would do to her if she told a lie on the witness stand. She said she did not know. The court found as a fact that she was not qualified as a witness, and stood her aside. No exception taken at the time and no statement made to the court as to what they expected to prove by the witness.”

We cannot go outside the case on appeal, and as no exception was taken, we cannot consider the objection. Besides, the evidence sustained the findings and ruling of the court.

It was discretionary with the judge to allow or to refuse further examination of the witnesses.

The prayers for instruction were substantially given.

We find

No error.