State v. Strickland, 436
Decision Date | 10 May 1961 |
Docket Number | No. 436,436 |
Parties | STATE, v. Albert STRICKLAND. |
Court | North Carolina Supreme Court |
Atty. Gen. Thomas W. Bruton, Asst. Atty. Gen. Harry W. McGalliard, for the State.
Earle R. Purser, Michael J. Rabil, Raleigh, for defendant appellant.
The defendant brings forward twelve assignments of error. However only one is supported by an exception and set out in his brief. The remaining eleven are deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562.
An assignment of error must be based upon an exception duly taken, in apt time, during the trial and preserved as required by the Rules of this Court. Rules 19(3) and 21. See 221 N.C. 544, supra, and State v. Moore, 222 N.C. 356, 23 S.E. 2d 31.
Exceptions in the record not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him. Rule 28 of the said Rules of Practice in the Supreme Court. See also State v. Walls, 211 N.C. 487, 191 S.E. 232; State v. Proctor, 213 N.C. 221, 195 S.E. 816; State v. Hightower, 226 N.C. 62, 36 S.E.2d 649.
Furthermore, the charge of the court to the jury does not appear in the record. Therefore, it will be presumed that the court correctly charged the jury as to the law arising upon the evidence as required by G.S. § 1-180. This Court has so held in numerous decisions when the charge does not appear in the record. State v. Harrison, 239 N.C. 659, 80 S.E.2d 481; State v. Phelps, 242 N.C. 540, 89 S.E.2d 132.
The sole question presented by the defendant in this case is whether or not the trial judge intimated an opinion to the jury, to the prejudice of the defendant as to the credibility of the prosecutrix and to the guilt of the defendant. The record shows the following transpired when the prosecutrix was testifying on direct examination:
'The Court: Do you remember, Helen, whether he said anything when he hit you with the belt?' Exception No. 2.
'Answer: (No answer).
'Question: (Solicitor) Well, honey, after he hit you with the belt, what did he do then?'
Then the prosecutrix proceeded to testify as to the events immediately preceding the crime.
The appellant contends that the judge, by asking the question set out above, committed reversible error in that it tended to prejudice the defendant in the eyes of the jury and constituted an expression of opinion by the court as to the weight and sufficiency of the evidence. See G.S. § 1-180 and numerous cases annotated thereunder. Considering the question in context and in the light of the circumstances in which it was asked, the conclusion is that the presiding judge did not intimate or express an opinion to the jury which prejudiced the defendant. It is well settled in this State that the trial judge can ask questions of a witness in order to obtain a proper understanding and clarification of the witness' testimony. State v. Humbles, 241 N.C. 47, 84 S.E.2d 264; State v. Stevens, 244 N.C. 40, 92 S.E.2d 409; State v. Furley, 245 N.C. 219, 95 S.E.2d 448.
Moreover, it is well to note that the judge was talking to a nine-year old child who was describing a sordid and horrible crime. The judge simply made an effort to persuade the child to answer a proper question asked by the...
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