State v. Jones

• Decision Date: 29 September 1948
• Docket Number: 145
• Citation: 49 S.E.2d 463,229 N.C. 276
• Parties: STATE v. JONES.
• Court: North Carolina Supreme Court

49 S.E.2d 463

229 N.C. 276

STATE v. JONES.

No. 145

Supreme Court of North Carolina

September 29, 1948

Criminal prosecution on indictment charging the defendant with assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. G.S s 14-32.

The record discloses that on the night of October 26, 1947 Claudius Mercer went to the home of the defendant, Robert Jones, to get his work clothes and trunk which he had left there when he quit the employment of the defendant the day before.

The evidence is in sharp conflict as to what transpired. Mercer says he was shot in the back by the defendant while he was bending over putting his clothes in the trunk. The defendant 'was in a very drunken condition' when later arrested that night, according to the testimony of the arresting officer.

The defendant's evidence, on the other hand, tends to show that the prosecuting witness was shot while trying to break into the defendant's home 'to get him or his clothes'; that the prosecuting witness was drinking and cursing at the time. The officer who saw Mercer soon thereafter says 'he was not under the influence of any intoxicating stimulant'.

Verdict Guilty of an assault with a deadly weapon.

Judgment Not less than 20 nor more than 24 months on the roads.

Defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Cameron S. Weeks, of Tarboro, and Allsbrook & Benton, of Roanoke Rapids, for defendant.

STACY Chief Justice.

In a warmly-contested prosecution with the witnesses differing widely on the facts, the jury has found the defendant guilty of a 'less degree of the same crime' charged, G.S. s 15-170, i. e., guilty of an assault with a deadly weapon. The verdict finds support in the evidence.

The principal exception, debated on argument and in brief, is addressed to the cross-examination of the defendant's wife. The defendant did not put his character in issue, nor did he take the stand as a witness. His wife did. On cross-examination, the solicitor asked her to state the number of times she had been in the courts of North Carolina to testify on behalf of her husband. The defendant objected to the question, and the objection was sustained. The jury was instructed to disregard the question. Later the defendant recalled his wife as a witness, and on cross-examination, the solicitor, over objection, was permitted to inquire as to the number of times she had appeared as a witness in the courts of Bertie, Northampton and Halifax Counties.

It is the contention of the defendant that the prosecution was thus allowed to put his character before the jury when he had not testified in the case and had refrained from putting his character...