State v. Sanders, 76
| Decision Date | 15 December 1971 |
| Docket Number | No. 76,76 |
| Citation | 185 S.E.2d 137,280 N.C. 67 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Claude Elbert SANDERS. |
Robert Morgan, Atty. Gen. by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.
Robert E. Gaines, L. B. Hollowell, Jr. and Mark Galloway, Gastonia, for defendant appellant.
The defendant assigns as error the failure of the court to sustain his objection to the evidence of Dr. Kelman who performed the autopsy. The court found Dr. Kelman to be a medical expert and a qualified pathologist. When the solicitor asked Dr. Kelman what he found to have been the cause of death, the defendant objected. Without ruling on the objection, the court reframed the question and the doctor answered that he found four bullet wounds in the body of I. J. Adams, one of which had passed entirely through the body. Three other bullets had penetrated from the back and lodged under the skin of the chest. Two of these bullets passed through his lungs causing massive hemorrhage and death.
Charles Currence, a witness to the shooting, testified the deceased was running away when the defendant fired the last four shots. He took I. J. to the hospital. He was dead on arrival.
The defendant objected to the court's question and to the testimony as to the cause of death. The court's question was clarifying. The answer of the doctor was material and competent. The objection is not sustained.
During the defendant's cross-examination, he testified the deceased was cutting him with a razor and he began shooting in self-defense. The solicitor on cross-examination asked him to remove his shirt and undershirt and show the jury any scars left as a result of the cuts. Defense counsel objected. The court overruled the objection and directed the defendant to comply with the solicitor's request. The State had offered evidence the deceased was unarmed. The defendant claims he was being cut with a razor-like instrument. The absence or presence of scars would be material on the defendant's plea of self-defense. The exception is not sustained.
The plaintiff placed his main reliance for a new trial on the defective condition of the stenographic report of the trial proceedings. The reporter's affidavit and the court's findings of fact disclose the reasons for the absence of the defendant's direct testimony and the court's charge. To be entitled to a new trial, surely the defendant and his counsel should suggest more than the failure of the record to show the exact words of his direct testimony. The defendant is alive and available. He is now represented by the two trial attorneys who placed him on the stand and conducted his direct examination. They should know whether the court excluded from the jury any of the defendant's material testimony. If so, they should be able to recall its substance and note it in the case on appeal. The erroneous exclusion of material evidence is, however, not even suggested. All that is claimed is that it is absent.
It is worthy of note in this connection that the defendant's cross-examination is reported in full. The admissions on cross-examination tend to show that the essentials of the State's evidence are not challenged by defense testimony. The defendant's own admissions would appear to be sufficient to take the case to the jury. The defendant has failed to show, or even allege, any error in the admission of evidence. While his direct testimony is not in the record, the jury heard all he said.
The only objection with respect to the charge is that the record of it is not in the hands of defense counsel. They heard the charge the judge gave. Both they and the judge are alive and available. Before a new trial should be ordered, certainly enough ought to be alleged to show that error was probably committed. If defense counsel even suspect error in the charge, they should set out in the record what the error is. If the solicitor does not object, theirs becomes the case on appeal. If he does object, the court could then settle the dispute. The appellate court would then have something tangible upon which to predicate a judgment. The material parts of a record proper do not include either the testimony of the witnesses or the charge of the court. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669.
After all, there is a presumption of regularity in the trial. In...
To continue reading
Request your trial
-
State v. Harman
...(1975); State v. Jackson, 444 S.W.2d 389 (Mo.1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1247, 25 L.Ed.2d 428 (1970); State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); State v. Bowden, 113 R.I. 649, 324 A.2d 631 (1974), cert. denied, 419 U.S. 1109, 95 S.Ct. 782, 42 L.Ed.2d 805; State v......
-
State v. Young
...it is necessary for matters constituting material and reversible error be made to appear in the case on appeal.' State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); Accord, State v. Hilton, 271 N.C. 456, 156 S.E.2d 833 We further note that in order to preserve an exception to the court's ......
-
State v. Phifer
...and reversible error to be made to appear in the case on appeal. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971). Accord, State v. Hilton, 271 N.C. 456, 156 S.E.2d 833 (1967). An appellate court is not required to, and should not, as......
-
State v. Thomas
...that the trial court acted correctly." See also State v. Bennett, 308 N.C. 530, 534, 302 S.E.2d 786, 789 (1983); State v. Sanders, 280 N.C. 67, 72-73, 185 S.E.2d 137, 140 (1971). In the instant case, however, the record is not silent. As defendant concedes, there are two notations in the re......