State v. Ham
| Decision Date | 22 March 1944 |
| Docket Number | 222. |
| Citation | 29 S.E.2d 449,224 N.C. 128 |
| Parties | STATE v. HAM et al. |
| Court | North Carolina Supreme Court |
The defendants were convicted of robbery of one Ardella Evans committed on the first day of October, 1943. With the appellants Ernest Evans was charged in the bill of indictment, but in the course of the trial the Solicitor for the State took a nol. pros. as to him.
From judgment of imprisonment predicated upon a jury verdict of guilty of robbery the defendants William Davis (alias Jack) Ham, Thurman Hardy and Raymond Hardy appealed to the Supreme Court, assigning errors.
Edward G. Hobbs, of Selma, and Claude C. Canaday, of Benton, for appellants.
Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.
The first exceptive assignments of error set out in the appellants' brief are those numbered one and two and are to the court's refusal to allow the defendants' motion to dismiss the action or for judgment of nonsuit lodged when the state had produced its evidence and rested its case and renewed after all the evidence in the case was concluded, G.S. § 15-173. We are constrained to sustain these assignments in so far as they relate to the defendant Raymond Hardy, since the evidence raises no more than a suspicion of his guilt. The assignments in so far as they relate to William Davis (alias Jack) Ham and Thurman Hardy are not sustained, since the testimony of the prosecuting witness Ardella Evans was to the effect that she was robbed of between five and six thousand dollars by two men who came to her house on the night, or late evening, of the first day of October, 1943; that one of the men held her while the other took the money from a pocket or bag attached to her slip that the man who held her was the taller of the two, and the man who actually took the money off of her person was the shorter; that the two men she subsequently saw in the jail were the two men who robbed her; and that these two men were Jack Ham and Thurman Hardy, two of the defendants. The fact that there may have been some variance or lack of definiteness and positiveness in her testimony on cross-examination could only effect the credibility of her testimony, and of this the jury were the sole judges. State v. Smoak, 213 N.C. 79, 195 S.E. 72.
Assignments of error 5 and 6 are to certain testimony of the prosecuting witness Ardella Evans to the effect that she did 'reckon' the defendants 'were trying to borrow money' from her, and that they 'were trying to borrow some' at the time they carried her to the show, and that she 'thought' they tried to borrow $300 the first time, and she 'reckoned' they wanted to borrow $750 the second time. The appellants contend that this testimony was incompetent for the reason that it was indefinite and not clear, and speculative, and against the interest of the appellants. With this contention we do not concur. How much weight should be given to the testimony was for the jury. The testimony was competent to show a motive in that it tended to show the defendants knew the prosecuting witness had the money and that the defendants were in need of money. State v. Cain, 175 N.C. 825, 95 S.E. 930.
Assignments of error 7 and 8 are to certain evidence relative to the physical and mental condition of one Ernest Evans offered for the purpose of showing that the said Ernest Evans was unable to attend court and testify and thereby render competent in this trial his testimony theretofore taken in a habeas corpus proceeding instituted by the defendants in this case. The first evidence assailed being the testimony of Dr. E. N. Booker, an admitted medical expert, to the effect that Ernest Evans was not, in his opinion, able to attend court, and the second evidence assailed being the testimony of Lester Hales to the effect that Ernest Evans 'lost his mind or something'. We think both the testimony of Dr. Booker and of Lester Hales falls within the well-recognized exceptions to the rule rendering opinion evidence incompetent. 'To the general rule that the opinion evidence is incompetent there are three, at least, well recognized exceptions: first, opinions of experts, second, opinions on the question of identity, and third, opinions received from necessity, i.e., when from the nature of the subject under investigation, no better evidence can be obtained.' State v. Harris, 213 N.C. 648, 197 S.E. 142, 143; State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037. We are of the opinion that the testimony of Dr. Booker falls within the first exception and that of the witness Hales within the third. These assignments are therefore untenable.
Assignment of error No. 13 relates to the introduction by the State of the testimony of Ernest Evans, taken at the habeas corpus proceeding before the trial of this case, over the objection of the defendants.
In speaking of the effect of our statutes (formerly C.S. §§ 4560, 4563 and 4572, now G.S. §§ 15-88, 15-91 and 15-100) making competent evidence of testimony reduced to writing by magistrates upon preliminary hearings upon the common-law rule, Hoke, J., in State v. Maynard, 184 N.C. 653 113 S.E. 682, 684, says: ...
To continue reading
Request your trial