State v. Thomas, 582

• Decision Date: 23 May 1956
• Docket Number: No. 582,582
• Citation: 244 N.C. 212,93 S.E.2d 63
• Parties: STATE, v. Samuel S. THOMAS.
• Court: North Carolina Supreme Court

Page 63

93 S.E.2d 63

244 N.C. 212

STATE, v. Samuel S. THOMAS.

No. 582

Supreme Court of North Carolina.

May 23, 1956

Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen., Claude L. Love for the State.

J. Kenneth Lee, Major S. High, Greensboro, for defendant appellant.

WINBORNE, Justice.

While in the case on appeal defendant appellant groups twenty-four assignments of error, Numbers 1 to 24, both inclusive, based upon exceptions of like corresponding numbers, his brief filed in this Court states three questions as involved on this appeal, the first as arising upon eight assignments of error, the second upon two, and the third upon one.

These assignments of error will be treated as grouped. But other assignments of error based on exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, are taken as abandoned by him. Rule 28 of Rules of Practice in the Supreme Court. 221 N.C. 544, at 563. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

I. The assignments of error first grouped by appellant in his brief are numbers 3, 8, 11, 12, 14, 15 and 16, relating to exceptions of like and corresponding numbers, to the trial court admitting certain evidence for corroboration when at the time there had not been any substantive evidence on the points in question which could then be corroborated by other testimony.

'Although the usual and more orderly proceeding in the development of a conspiracy is to establish the fact of the existence, and then the connection of the defendant with it, yet the conduct of the trial and the order in which the testimony shall be introduced must rest largely in the sound discretion of the presiding judge, and if at the close of the evidence every constitutent of the offense charged is proved, the verdict rested thereon will not be disturbed,' so declared this Court in opinion by Smith, C. J., in State v. Jackson, 82 N.C. 565. To like effect is State v. Anderson, 92 N.C. 732.

Moreover, in civil cases this Court uniformly holds that the order of proof on trials in the Superior Court is a rule of practice, and not of law, and it may be departed from whenever the court in its discretion considers it necessary to promote justice. See McIntosh N. C. P & P, 564, p. 711. D'Armour v. Beeson Hardware Co., 217 N.C. 568, 9 S.E.2d 12; In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225.

In the light of the rule of practice so enunciated, applied to the matters covered by the assignments of error under consideration, error is not made to appear. It is seen that the trial judge was careful to properly instruct the jury when objection was entered.

II. Another group of assignments of error Numbers 22 and 24 is based upon exceptions to portions of the charge as given, under which it is contended in the brief of appellant, that the court failed to charge the jury as required by G.S. § 1-180.

In this connection, it appears that there is in the record no assignment of error to the effect that the court failed to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon as required by G.S. § 1-180. And where there is no assignment of error in the record for failure of the court to state the evidence and declare and explain the law arising thereon, exception on this ground will not be considered on appeal. State v. Spivey, 230 N.C. 375, 53...