State v. Spain, 687SC398

• Decision Date: 18 December 1968
• Docket Number: No. 687SC398,687SC398
• Citation: 164 S.E.2d 486,3 N.C.App. 266
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Donald W. SPAIN.

Page 486

164 S.E.2d 486

3 N.C.App. 266

STATE of North Carolina v. Donald W. SPAIN.

No. 687SC398.

Court of Appeals of North Carolina.

Dec. 18, 1968.

T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Staff Atty., Raleigh, for the State.

W. O. Rosser, Whitakers, for defendant appellant.

CAMPBELL, Judge.

The defendant assigns as error the following: (1) the admission of Tanya's testimony about other episodes; (2) the admission of the mother's testimony about what she saw on 10 February 1968 and what Tanya told her about previous episodes; (3) the admission of Police Detective Horace Winstead's testimony about what Tanya told him; (4) the denial of the defendant's motion for judgment as of nonsuit; and (5) the failure of the trial judge to properly charge the jury.

The defendant's first contention is that the trial court erred in admitting Tanya's testimony about other episodes. 'Although the North Carolina Court has not expressly recognized a separate category for (sex) offenses * * *, the decisions are markedly liberal in holding evidence of similar sex offenses admissible for one or more of the purposes listed above (to show knowledge, intent, motive, etc.), especially when the sex impulse manifested is of an unusual or 'unnatural' character.' Stansbury, N.C. Evidence 2d, § 92. The Supreme Court has held evidence of similar prior occurrences competent in the following cases: State v. Hartsell, 272 N.C. 710, 158 N.E.2d 785; Gasque v. State, 271 N.C. 323, 156 S.E.2d 740; State v. Browder, 252 N.C. 35, 112 S.E.2d 728; State v. Leak, 156 N.C. 643, 72 S.E. 567.

This assignment of error is overruled.

The defendant's second contention is that the trial court erred in admitting the mother's testimony about what she saw on 10 February 1968 and what Tanya told her about previous episodes. G.S. § 8--57 (husband and wife as witnesses in criminal actions) provides, Inter alia, '* * * that in all criminal prosecutions of a spouse for an assault upon the other spouse, or for any criminal offense against a legitimate * * * child of either spouse, * * * it shall be lawful to examine a spouse in behalf of the State against the other spouse * * *.'

The mother's testimony as to what her daughter Tanya had told her about previous occurrences was competent as corroborative evidence, and in the absence of a request for special instructions limiting the testimony to corroborative purposes, the court was not required to so instruct the jury. State v. Rose, 270 N.C. 406, 154 S.E.2d 492; State v. Brooks, 260 N.C. 186, 132 S.E.2d 354; Stansbury, N.C. Evidence 2d, §§ 27, 51, 52, and 79; State v. Hartsell, supra.

This assignment of error is overruled.

The defendant's third contention is that the trial court erred in admitting Police Detective Horace Winstead's testimony about what Tanya told him. It was competent in part for the purpose of corroborating Tanya's testimony, but it was incompetent in part because it went beyond her testimony. However, the defendant's general objection was properly overruled since it was admissible for corroborative purposes. State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467. It was also unnecessary in the absence of a request by the defendant for the trial judge to limit its admissibility to purposes of corroboration. State v. Walker, 226 N.C. 458, 38 S.E.2d 531.

'As a general rule, the general admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by defendant that its admission be restricted, and a general objection to the testimony is insufficient.' 2 Strong, N.C. Index 2d, Criminal Law, § 95.

This assignment or error is overruled.

The defendant's fourth contention is that the trial court erred in denying the motion for judgment as of nonsuit. The testimony of Tanya and her mother was sufficient to carry the case to the jury. The defendant concedes that this is true 'except for the testimony of Dr. Benjamin E. Morgan.' Since Dr. Morgan testified that he examined Tanya on 11 February 1968 and that the examination revealed no bruises or anything of an abnormal condition, the defendant contends that this contradicted the State's evidence. However, the testimony of Tanya and her mother and the testimony of Dr. Morgan are not contradictory, particularly since bruises and visible marks are not required for conviction. Even if there was...