State v. Harris
| Decision Date | 22 March 1933 |
| Docket Number | No. 243.,243. |
| Citation | 204 N. C. 422,168 S.E. 498 |
| Parties | STATE . v. HARRIS. |
| Court | North Carolina Supreme Court |
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Appeal from Superior Court, Wake County; Sinclair, Judge.
Dan Harris was convicted of having carnal knowledge of a female child under the age of 16 years, in breach of C-S. Supp. 1924, § 4209, and he appeals.
No error.
Charles U. Harris and R., B. Parris, both of Raleigh, for appellant,
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The exceptions taken by the defendant, eliminating those which are formal, relate to an incident which occurred during the trial. A witness for the state testified on the cross-examination that she had reported the defendant's conduct to the chief of police at the request of the girl's mother. The inference was that the request had been communicated to the witness by letter. In arguing the case to the jury, the defendant's counsel referred to the fact that no letter had been introduced and that no explanation of its absence had been made. The court took a recess until the next morning, and, when It reconvened, the solicitor gave the opposing counsel a letter, and remarked, "There is the letter referred to in your speech to the jury yesterday." It is not known that any member of the jury heard the remark.
After the verdict was announced, the defendant made a motion for a new trial and set out in writing his version of the transaction, and the solicitor filed an opposing affidavit. The court overruled the defendant's motion, to which exception was entered, and pronounced judgment. The defendant excepted and appealed.
The regularity of the trial is presumed, and the burden is upon the appellant to show prejudicial error. Quelch v. Futch, 175 N. C. 694, 94 S. E. 713; Blevins v. Norfolk & W. R. R., 184 N. C. 324, 114 S. E 298; Rawls V. Lupton, 193 N. C. 428, 137 S. E. 175. The allegations made in the motion for a new trial and those in the affidavit differ in material respects. We cannot determine from conflicting averments just what the facts are, and the appellant did not request the presiding judge to find the facts in regard to the letter. Under these circumstances, we cannot assume that the contents or the existence of the letter was known to the jury. In overruling the motion for a new trial, the court presumably found the facts against the defendant's contention. In State ex rel. Commissioner of Revenue v. Brown Realty Co., 204 N. C. 123, 167 S. E. 563, it was said, "The court found no facts, but, in the absence of the request to this effect by the appellant, we must assume that the judgment is based upon...
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...judge and by a jury of the vicinage, and no evidence is offered to rebut the presumption of the regularity of the trial. State v. Harris, 204 N.C. 422, 168 S.E. 498. Constitution of North Carolina, Art. I sec. 11, contains this provision: 'In all criminal prosecutions every man has the righ......
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