State v. Alston, 52
| Decision Date | 11 November 1977 |
| Docket Number | No. 52,52 |
| Citation | 238 S.E.2d 505,293 N.C. 553 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Harry ALSTON, Jr. |
Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Associate Atty., Raleigh, for the State.
John B. Evans, Southern Pines, for defendant-appellant.
The defendant does not except to any portion of the court's charge to the jury. We have, however, carefully examined the court's instructions and find no error therein. In his statement of the case on appeal, the defendant did assign as error the failure of the court to instruct the jury with respect to possible verdicts of guilt of lesser offenses included within the charge of first degree burglary, but no argument is made or authority cited with reference to this assignment of error in the defendant's brief. It is, therefore, deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure, 287 N.C. 671, 741. In any event, this assignment of error is without merit. There was no evidence of a lesser offense included within the offense of first degree burglary, the evidence for the State showing the commission of the offense charged in the bill of indictment and the evidence of the defendant tending to establish an alibi. Where there is no evidence which would support a verdict of guilty of a lesser included offense, it is not error to fail to instruct the jury upon such offenses or to fail to submit these as possible verdicts. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706 (1972); State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); Strong, N.C. Index 3d, Criminal Law, § 115.
On cross-examination, Deputy Sheriff Thornton stated that he took no physical evidence from the residence of Mary Lee Clark, such as fingerprints, clothing or blood samples. Thereupon, defendant's counsel asked the witness, " Then eventually, Deputy Thornton, your entire case is just on Mrs. Clark's words * * *." The State objected and the objection was sustained. In this there was no error. While the record indicates the defendant's question was not completed, his assignment of error is not based on that circumstance so we conclude that the question was, in fact, complete. The objection was properly sustained for the reason that this question was, in reality, mere argument with the witness and not designed to elicit any information not already before the jury. Moreover, the record does not disclose what the answer of the witness would have been. See, Stansbury, North Carolina Evidence (Brandis Rev.), § 26. Furthermore, while the deputy may have relied entirely upon Mary Lee Clark's statements, the case for the State also includes the testimony of Dr. Smith and the...
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