State v. Oxendine

• Citation: 32 S.E.2d 648,224 N.C. 825
• Decision Date: 03 January 1945
• Docket Number: 652
• Parties: STATE v. OXENDINE.
• Court: United States State Supreme Court of North Carolina

32 S.E.2d 648

224 N.C. 825

STATE v. OXENDINE.

No. 652

Supreme Court of North Carolina

January 3, 1945

The defendant was tried upon a bill of indictment charging that he 'did unlawfully, wilfully and feloniously assault C. S. Warriax with a certain deadly weapon, to wit: Shotgun, with the felonious intent to kill and murder the said C. S. Warriax, inflicting serious injuries, not resulting in death, upon the said C. S Warriax, to wit: serious injuries about the head and body caused by being assaulted with deadly weapon, against the form of the statute in such case made and provided and against the peace and dignity of the State. ' The jury returned a verdict that the 'said defendant Clyde Oxendine is guilty as charged,' and the Court pronounced judgment that 'the defendant be confined in State's Prison for not less than seven or more than ten years,' from which judgment the defendant appealed, assigning errors.

Varser McIntyre & Henry and F. D. Hackett, Jr., all of Lumberton, for defendant, appellant.

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

SCHENCK Justice.

The first group of assignments of error set out in appellant's brief is presented under the first question posed in his brief, namely: 'Did the Court err in admission of testimony offered by the State?'

The first of these assignments relates to the testimony of the prosecuting witness Warriax that 'there were approximately 150 shot in his head. ' The defendant objected to the testimony and moved to strike it from the record. The Court overruled the objection as well as the motion to strike, and defendant excepted. The defendant bases his exception upon the theory that the witness had formerly testified that 'he knew how many (shot) he had been told went in there' (his head), and that therefore the testimony was hearsay. It does not appear in the record that the witness made the statement that he knew approximately how many shot went into his own head immediately following his statement that he knew how many shot he had been told went in his head, and there is nothing in the record that supports the assumption that the former statement was based on the latter statement; the former statement could have been as readily based on his suffering or his sense of feeling. It was clearly competent for the witness to testify to approximately how many shot went into his own head--this for the purpose of showing the seriousness of the injury, if nothing else. This assignment of error is not sustained.

The second assignment of error relates to the testimony of a witness for the State to the effect that a gun found in the defendant's home smelled as if the powder therein had been recently fired. It would seem that this testimony would be competent on the question as to whether the defendant fired the gun, but however this may be, any value which the exception might originally have had was waived by testimony of a number of witnesses to the same effect in the record without objection. State v Hudson, 218 N.C. 219, 230, 10 S.E.2d 730. This assignment of error is not sustained.

The third assignment of error relates to the testimony of a State's witness in explaining on redirect examination his testimony given on cross examination. The witness was interrogated on cross examination and had admitted that he had been convicted of an assault, and the testimony assailed by this exception was the explanation given by the witness on redirect examination of his testimony on cross examination. Such testimony was competent. State v. Orrell, 75 N.C. 317.

The fourth assignment of error relates to the testimony of the prosecuting witness to the effect that he had shot a brother-in-law of the defendant on the night of the assault. In view of the fact that it was in evidence that the defendant had said he was going to kill the prosecuting witness because he (witness) had shot his (defendant's) best friend, the testimony was merely an explanation of previous testimony, and was also clearly admissible to establish motive. State v. Hudson, supra, State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552.

The fifth assignment of error relates to the admission, over objection, of testimony of the prosecuting witness to the effect that he had arrested the defendant for being drunk. This assignment is untenable as the testimony tends to establish a motive for the shooting of the witness by the defendant, which, though not necessary to...