State v. Bass

• Decision Date: 19 November 1958
• Docket Number: No. 434,434
• Citation: 249 N.C. 209,105 S.E.2d 645
• Court: North Carolina Supreme Court
• Parties: STATE, v. Matthew Phillip BASS.

Page 645

105 S.E.2d 645

249 N.C. 209

STATE, v. Matthew Phillip BASS.

No. 434

Supreme Court of North Carolina.

Nov. 19, 1958

Herman L. Taylor, Samuel S. Mitchell, Raleigh, for defendant-appellant.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Harry W. McGalliard, for the State.

WINBORNE, Chief Justice.

The record fails to show that defendant moved to dismiss the action or for judgment as of nonsuit when the State had introduced its evidence and rested its case, or at the close of all the evidence in accordance with the provisions of G.S. § 15-173. Nor does the defendant contend here on this appeal that the evidence is insufficient to take the case to the jury on the charge laid, and to support the verdict rendered against him.

But defendant does set forth in the case on appeal assignments of error covering eighty-four exceptions to matters occurring in the course of the trial in Superior Court, and to portions of the charge as given by the trial judge to the jury, and to his failure to charge in other aspects.

The exceptions brought forward in large measure relate to (1) direct testimony of prosecutrix in identifying wearing apparel removed from her person, and later found in the building, and as to knife of defendant with which prosecutrix was cut, all introduced in evidence; (2) corroborative testimony of other witnesses pertaining thereto; and (3) photographs admitted in evidence for the purpose of illustrating the testimony of prosecutrix and of other witnesses as to areas surrounding the scene of the crime charged.

The action of the court in admitting such evidence finds approval in decisions of this Court. State v. Wall, 205 N.C. 659, 172 S.E. 216; State v. Petry, 226 N.C. 78, 36 S.E.2d 653; State v. Hooks, 228 N.C. 689, 47 S.E.2d 234; State v. Speller, 230 N.C. 345, 53 S.E.2d 294, 297.

In the Speller case, in opinion by Ervin, J., it is said: 'The articles of clothing produced at the trial by the prosecution were rightly received in evidence. They were identified as the garments worn by the accused and prosecutrix at the time named in the indictment, and bore tears and stains corroborative of the State's theory of the case,' citing State v. Wall, supra, and other cases. The same principle would apply as to the knife of defendant with which, prosecutrix testified, he threatened her and actually cut her hands, face and throat.

Moreover, the decisions of this Court uniformly hold that while in the trial of cases, civil or criminal, in this State, photographs may not be admitted as substantive evidence, Honeycutt v. Cherokee Brick Co., 196 N.C. 556, 146 S.E. 227; State v. Perry, 212 N.C. 533, 193 S.E. 727, where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy. See State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and cases cited. Also State v. Chavis, 231 N.C. 307, 56 S.E.2d 678; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Norris, 242 N.C. 47, 86 S.E.2d 916.

Testing the matters of testimony in respect to photographs by the principle here stated, error in the rulings of the trial judge is not made to appear.

Furthermore defendant contends that...