State v. Spaulding

• Decision Date: 29 November 1939
• Docket Number: 577.
• Citation: State v. Spaulding, 216 N.C. 538, 5 S.E.2d 715 (N.C. 1939)
• Parties: STATE v. SPAULDING.
• Court: North Carolina Supreme Court

5 S.E.2d 715

216 N.C. 538

STATE v. SPAULDING.

No. 577.

Supreme Court of North Carolina

November 29, 1939

Herbert McClammy, of Wilmington, for defendant-appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and Geo. B. Patton Asst. Attys. Gen., for the State.

SCHENCK Justice.

The defendant was convicted of operating a motor vehicle on the public highway while under the influence of intoxicating liquor. The evidence was conflicting but the jury seems to have believed the testimony of the State's witnesses rather than that of the defendant and his witnesses. There are no exceptions to the charge.

The appellant relies upon two exceptions which appear in the record as follows: "Counsel for the State stated to the Court that this witness was offered for the purpose of contradicting Mrs. Simmons. Fred Hooks testified: I am the floor man at Lee's Warehouse. I know Spaulding. I know Mrs. Simmons. Q. Did you ever see them together--Mr. McClammy: Now, don't you answer that until the Judge says you can answer it. Q. --at least whether they were there without anybody else in the car but Spaulding and Mrs Simmons. Objection by defendant. Court: If you are asking that for the purpose of contradiction, with an exception by the defendant, you may answer it. Objection overruled. Defendant excepts. Exception No. 1. A. Why I couldn't say how many times I have seen them together, right many times. I would say I had seen them as late as 11:00 at night. Cross Examination. The witness was asked whether he wanted to create the impression upon that jury that the lady and Spaulding were there for immoral and an improper purpose. It was objected to by the Solicitor. Mr. McClammy: You can see perfectly plain what the purpose of it is. Court: You may state whether you mean immoral purpose or not. Defendant objects. Objection overruled. Defendant excepts. A. Well, I wouldn't--I couldn't say that there was any immoral conduct in it, but I saw them, saw them together, I couldn't say what it was for, I couldn't explain that question. To this evidence, the defendant objects. Objection overruled. Defendant excepts. Exception No. 2."

We are of the opinion that the evidence assailed by the exceptions is competent in view of the testimony given on cross-examination by the defendant's witness Mrs Simmons, who it appears was a tenant of the defendant, as follows: "I never rode in Lee's Warehouse late at night with nobody in the car but Spaulding. I deny that I did. I don't know Mr. Judd...