State v. Hollingsworth, 591

• Citation: 263 N.C. 158,139 S.E.2d 235
• Decision Date: 16 December 1964
• Docket Number: No. 591,591
• Parties: STATE of North Carolina v. Alvis HOLLINGSWORTH.
• Court: United States State Supreme Court of North Carolina

Page 235

139 S.E.2d 235

263 N.C. 158

STATE of North Carolina v. Alvis HOLLINGSWORTH.

No. 591.

Supreme Court of North Carolina.

Dec. 16, 1964.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, and Asst. Atty. Gen. Richard T. Sanders for the State.

Harrison & Diehl, Raeford, for defendant appellant.

PARKER, Justice.

Defendant was arrested on a warrant charging the offenses later alleged in the indictment here, which required him to appear before the recorder's court of Hoke County. He appeared before the recorder's court and demanded a jury trial. Whereupon, his case was transferred to the superior court of Hoke County, Pursuant to the provisions of Ch. 408, Public-Local Laws, Session 1937, which is an act relating to the recorder's court of Hoke County. In the superior court, under such circumstances, he was properly tried upon an indictment. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283.

When defendant was tried in the superior court, he was represented by Arthur L. Lane, a lawyer of his own choice.

The indictment avers the offenses charged therein were committed on 10 March 1964. Dr. R. M. Jordan, a practicing physician in Raeford, was a witness for the State. This is a summary of his testimony on direct examination, except when quoted: On the night of 10 March 1964, he and defendant's brother were together at the common jail of Hoke County. He examined the defendant. He smelt the odor of alcoholic beverage on his breath. His brother 'kept asking me if I thought he was drunk and I told him 'yes' I thought he was; so he told me I need not bother to go any further and he was going to get him back upstairs, that there was no use wasting any money.' From his examination of the defendant, in his opinion he was under the influence of some intoxicant. At this point defendant's counsel objected, and his objection was overruled. Immediately thereafter, without objection, Dr. Jordan testified that in his opinion defendant was under the influence. The time was 10:55 p. m. This is the substance of Dr. Jordan's testimony on cross-examination by defendant's counsel Lane: Defendant's brother talked to him on the telephone. When he was at the jail, defendant's brother was there with him wanting to know if defendant was drunk. On redirect examination Dr. Jordan testified: 'I could not tell from my examination that he was suffering any epilepsy seizure or any condition that he may have had.' At this point defendant's counsel objected. His objection was overruled. He then excepted to the entire testimony of Dr. Jordan, and this is his exception No. 1.

Defendant assigns as error the admission of the entire testimony of Dr. Jordan, on the ground that his testimony was inadmissible under the provisions of G.S. § 8-53. This assignment of error is based on his exception No. 1. This assignment of error is overruled. The evidence is clear that Dr. Jordan went to the jail to examine defendant to determine if he was drunk or under the influence of intoxicating liquor at the request of defendant's brother, not at the request of defendant, and not to perform any professional services for defendant. The relationship of patient and physician, under such circumstances, did not exist between defendant and Dr. Jordan within the purview of G.S. § 8-53, and Dr. Jordan's testimony that defendant was under the influence of some intoxicant is not inadmissible by reason of the provisions of G.S. § 8-53, and was properly admitted in evidence. State v. Newsome, 195 N.C. 552, 143 S.E. 187; State v. Wade, 197 N.C. 571, 150 S.E. 32; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; Stansbury, N.C. Evidence, 2d ed., § 63.

Dr. Jordan examined defendant without any objection on his part. Dr. Jordan's testimony as to defendant's condition in respect to being drunk or under the influence of intoxicating liquor does not violate defendant's constitutional right not to be compelled to give evidence against himself. State v. Eccles, 205 N.C. 825, 172 S.E. 415; State v. Rogers, 233 N.C. 390, 64 S.E.2d 872, 28 A.L.R.2d 1104; State v. Grayson, 239 N.C. 453, 80 S.E.2d 387.

Defendant assigns as error, based on his exception No. 2, that the court failed to charge the jury in respect to the fifth count in the indictment that 'an individual has the right to resist an unlawful arrest, using reasonable force.' Defendant does not challenge the correctness of that part of the charge in respect to the first count in the indictment charging him with operating an automobile upon a public highway while under the influence of intoxicating liquor. Even if the court erred in failing to charge on the fifth count in the indictment as contended by defendant, or even if the court erred in its charge in any respect as to the fifth count in the indictment, which is not conceded, no harm resulted to defendant of which he can justly complain, because concurrent prison sentences of equal length were imposed by the court on the conviction on the first count in the indictment charging driving an automobile on a public highway while under the influence of intoxicating liquor and on the conviction on the fifth count in the indictment charging resisting an officer while in the discharge of the duties of his office. State v. Booker, 250 N.C. 272, 108 S.E.2d 426; State v. Thomas, 244 N.C. 212, 93 S.E.2d 63; State v. Riddler, 244 N.C. 78, 92 S.E.2d 435. Further, the record contains the testimony of Dr. Jordan alone. The charge of the court indicates that Alex S. Norton, deputy sheriff of Hoke County, testified for the State. There is no evidence in the record before us tending to show defendant's arrest was unlawful. A judge should never charge the jury upon a state of facts not presented by some reasonable view of the evidence in the case. State v. McCoy, 236 N.C. 121, 71 S.E.2d 921; State v. Wilson, 104 N.C. 868, 10 S.E. 315; Modern Electric Company v. Dennis, 259 N.C. 354, 130 S.E.2d 547.

It appears that defendant was tried, convicted, and sentenced on the first day of the session of court, and that on the third day of the session H. D. Harrison, Jr., a member of the Hoke County Bar, appeared in court and made a motion that the court permit him, 'along with solicitor,' to examine the jurors, who had convicted defendant, to find out whether they had heard the court's charge to the jury in defendant's trial. The court denied his motion, and he excepted. Attorney Harrison then asked would the court do so on its own motion. Eleven of the jurors in defendant's case were in the courtroom. The court asked the eleven jurors present did any one of them fail to understand his charge. Juror Duncan replied, 'No sir.' Duncan later said: 'I would say it was difficult to hear you, but I think as for myself I heard you.' Another juror replied: 'We say it was hard to understand you, but I believe I could understand you.' Juror Hendrix replied: 'I understood the instructions. I didn't understand the whole entire charge, but I understood the instructions, part of it.' Then this appears in record: 'Court: Is there anybody that didn't understand the instructions, the words I gave you with respect to the offenses charged, is there any one that didn't understand the instructions? Pause--no answer--I take it from your silence then, that all of you eleven did understand the instructions of what you would have to find from the evidence and beyond a reasonable doubt to return a verdict of guilty to driving a motor vehicle upon a highway while under the influence of intoxicating liquor and on the charge of resisting arrest? Pause--You acquitted the defendant on assault with a deadly weapon, isn't that right?' The record then shows this: 'JUROR DUNCAN: Yes sir. COURT: Did you understand all the instructions that I gave? JUROR: I understood that. COURT: Let the record so show.' After this Attorney Harrison was permitted by the court to examine juror Hendrix, who answered him substantially as he stated to the court, and to examine juror Best, who answered: 'I did not hear all of his charge; I heard his instructions, but his charge, all of it, I could not understand it, because it was too low, as he repeated the testimony.' At this point the court told Harrison not to ask the jurors any other questions. Whereupon attorney Harrison requested the court to let him cross-examine the jurors as to their ability to hear fully and completely the court's instructions. The court denied his request, and he excepted and assigns this as error.

Beginning with Sutrell v. Dry, 5 N.C. 94 (1805), and in an unbroken line of decisions to the same effect since, it is firmly established in this State, as a general rule at least, based upon wise reasons of public policy that jurors, after their verdict has been rendered to and received by the court and after they have been discharged and separated, will not be allowed by testimony or affidavit to impeach, to attack, or to overthrow their verdicts, nor will evidence from them be received for such purpose, and that evidence for that purpose, if admitted at all, must come from some other source. State v. McLeod, 8 N.C. 344; Bellamy v. Pippin, 74 N.C. 46; State v. Smallwood, 78 N.C. 560; State v. Brittain, 89 N.C. 481; State v. Royal, 90 N.C. 755; Lafoon v. Shearin, 95 N.C. 391; Jones v. Parker, 97 N.C. 33, 2 S.E. 370; Johnson v. Allen, 100 N.C. 131, 5 S.E. 666; State v. Best, 111 N.C. 638, 15 S.E. 930; Purcell v. Southern R.R., R., 119 N.C. 728, 26 S.E. 161; Coxe v. Singleton, 139 N.C. 361, 51 S.E. 1019; State v. Hall, 181 N.C. 527, 106 S.E. 483; Baker v. Winslow, 184 N.C. 1, 113 S.E. 270; McCabe Lumber Co. v. Beaufort County Lumber Co., 187 N.C. 417, 121 S.E. 755; State v. Dove, 189 N.C. 248, 126 S.E. 610; Newton v. Brassfield, 198 N.C. 536, 152 S.E. 499; Campbell v. High Point, T. & D. R. R., 201 N.C. 102, 159 S.E. 327; Lambert v. Caronna, 206 N.C. 616, 175 S.E. 303; In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1; Stansbury, N.C. Evidence, 2d ed., § 65.

In Sutrell v....