State v. Tipton, 7028SC220

• Decision Date: 06 May 1970
• Docket Number: No. 7028SC220,7028SC220
• Citation: 173 S.E.2d 527,8 N.C.App. 53
• Parties: STATE of North Carolina v. Lucile TIPTON.
• Court: North Carolina Court of Appeals

Page 527

173 S.E.2d 527

8 N.C.App. 53

STATE of North Carolina v. Lucile TIPTON.

No. 7028SC220.

Court of Appeals of North Carolina.

May 6, 1970.

Atty. Gen. Robert Morgan by Staff Attorney Edward L. Matman, Jr., Raleigh, for the State.

Horton & Horton by Shelby E. Horton, Jr., Asheville, for defendnat appellant.

MORRIS, Judge.

Defendant's brief contains no sttement of facts as required by Rules 27 1/2 and 28 of the Rules of Practice in the Court of Appeals of North Carolina, nor does defendant bring forward assignment of error No. 3 in her brief. We, therefore, deem it abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

By assignments of error Nos. 1, 2 and 4 defendant contends that the court erred in 'allowing leading and/or speculative and/or prejudicial questions to be asked of interested witnesses.' Defendant excepted to the court's permitting a witness to testify that 'I think she (defendant) came in around 12:30 or 1:00.' This exception is without merit. Even though the witness used the words 'think' and 'around', the lack of definiteness and positiveness in her testimony could only affect her credibility, and of this the jury is the sole judge. State v. Ham, 224 N.C. 128, 29 S.E.2d 449 (1944). Defendant's other two assignments of error are bottomed on the court's permitting leading questions. The permitting of leading questions is within the discretion of the trial judge, especially in cases requiring evidence of the type which arose in this case, and will not be reviewed on appeal in the absence of a showing of abuse of that discretion. State v. Pearson, 258 N.C. 188, 128 S.E.2d 251 (1962), and cases there cited. Defendant has shown no prejudice nor abuse nor do we perceive any. Assignments of error Nos. 1, 2 and 4 are overruled.

By assignment of error No. 5 defendant asserts that the court committed reversible error in failing to add to his charge on presumption of innocence an instruction that such presumption remains with the defendant throughout the trial. It is not error to fail to charge on presumption of innocence. State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946). 'The presumption of innocence is a subordinate feature of the cause and if the defendants desired an amplification of the charge in this respect, they should have so requested at the time.' State v. Perry, supra, 534, 39 S.E.2d 464. This assignment of error is not sustained.

Defendant contends by assignment of error No. 6 that it was...