State v. Sherron, 6914SC72
| Decision Date | 30 April 1969 |
| Docket Number | No. 6914SC72,6914SC72 |
| Citation | 4 N.C.App. 386,166 S.E.2d 836 |
| Parties | STATE of North Carolina v. Claiborne Lee SHERRON. |
| Court | North Carolina Court of Appeals |
Atty. Gen., Robert Morgan and Staff Atty. Christine Y. Denson, Raleigh, for the State.
John C. Randall, Durham, for defendant appellant.
The judgment sentencing defendant was entered 12 June 1968. The record on appeal was docketed in this Court 4 December 1968. This was 175 days after the date of the judgment appealed from. For failure to docket within the time prescribed by the rules of this Court, this case should be dismissed Ex mero motu. Rules 5 and 48, Rules of Practice in the Court of Appeals; State v. Farrell, 3 N.C.App. 196, 164 S.E.2d 388; State v. Squires, 1 N.C.App. 199, 160 S.E.2d 550. Nevertheless, in an effort to determine that justice is done, we have reviewed the record with respect to the assignments of error, brought forward for review.
Defendant's first two assignments of error relate to the court's action in permitting the solicitor to ask defendant certain questions on cross-examination relating to defendant's previous occupation and prior convictions. However, defendant's objections were interposed prematurely before the solicitor completed asking the questions, and the court properly deferred ruling in each instance until the entire question had been asked. In case of the questions which are the subject matter of exceptions to object when the entire questions were asked. In case of the question which is the subject matter of exception #7, the court properly sustained defendant's objection when timely made. In neither instance was the court required to rule upon a question not yet fully asked.
In the case of exception #8, defendant interposed objection 'to the whole line of questioning' relating to his prior convictions and requested the court to instruct the jury not to consider them. The court properly refused this request and properly ruled on each question as it was presented.
It is elementary law that a defendant who elects to testify in a criminal case may be cross-examined so as his prior convictions for purposes of impeaching him as a witness. State v. Jeffries, 3 N.C.App. 218, 164 S.E.2d 398; Stansbury, N.C. Evidence 2d, § 112. Defendant did not request that the evidence, competent for the purpose of impeachment, be so restricted. Absent this request the court is not required to give such instructions. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310.
Defendant next assigns as error the overruling of his motion for nonsuit. In support of his contention that nonsuit should have been allowed, defendant quotes from State v. Oliver, 70 N.C. 60, which was decided in 1874, as follows:
'If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.'
While today as in 1874 family disputes are better settled at home than in the courts, neither in 1874 nor at any time thereafter has the marital relationship afforded a license to commit assault. State v. Oliver, Supra, does not so hold. In that case the husband was convicted for switching his wife; on appeal the judgment was affirmed. In the case presently before us there was plenary evidence to justify submitting the question of defendant's guilt to the jury, and the motion for nonsuit was properly overruled.
Defendant contends his motion in arrest of judgment should have been granted on the ground that the increased sentence imposed in the superior court placed an unconstitutional burden on his right to appeal from the district court. This contention is without merit. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371. Defendant further contends that his motion in arrest of judgment should have been granted on the additional grounds that his constitutional right to a jury trial has been infringed, in that in order to obtain a jury trial he had first to submit to trial without a jury in the district court and then appeal to superior court stigmatized by conviction in the court below. Defendant contends this procedure placed an impermissible burden upon exercise of his constitutional right to a jury trial. This contention is also without merit. Art. I, § 13 of the North Carolina Constitution provides:
By G.S. § 7A--272 district court has exclusive, original jurisdiction for the trial of criminal actions below the grade of felony, and the same are declared to be petty misdemeanors. G.S. § 7A--196 provides: This provision does not transgress the requirements of Art. I, § 13 of our State Constitution. State v. Norman, 237 N.C. 205, 74 S.E.2d 602; State v. Pulliam, 184 N.C. 681, 114...
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State v. Sparrow, 6926SC504
...The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal.' In State v. Sherron, 4 N.C.App. 386, 166 S.E.2d 836 (1969), where the identical question was raised, Parker, J., speaking for the Court, 'By G.S. § 7A--272 the district court has e......