State v. Tyson, 75
| Citation | 242 N.C. 574,89 S.E.2d 138 |
| Decision Date | 21 September 1955 |
| Docket Number | No. 75,75 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Willey James TYSON. |
Albion Dunn, Greenville, for defendant appellant.
Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. Robert E. Giles, and William P. Mayo, Washington, of Staff, for the State.
There was evidence that a bullet hole was found in the door, and a bullet was found lying on the sill below the hole. Exception thereto is without merit. The testimony tends to show that the defendant was shooting in that direction, and this evidence was merely corroborative of that testimony.
One of the witnesses for defendant, in describing the assault made by deceased upon the defendant, testified: 'He hit him across the head and broke the round; stooped down and picked a piece of it up, looked like he was going to hit him again.' Objection thereto was sustained and defendant excepted. Of course the first part of the answer was competent. No doubt the exception was directed to that part of the answer which the State contends was the mere expression of an opinion, to wit, 'looked like he was going to hit him again.'
This exception is feckless. Whether the statement made by the witness constitutes the expression of opinion or a shorthand statement of a fact is debatable. It is at least on the border line. However, even if we consider it a shorthand statement of fact, the same witness testified to substantially the same facts immediately thereafter. State v. Humbles, 241 N.C. 47, 84 S.E.2d 264; State v. Bovender, 233 N.C. 683, 65 S.E.2d 323; State v. Werst, 232 N.C. 330, 59 S.E.2d 835; State v. King, 225 N.C. 236, 34 S.E.2d 3. He testified that the deceased Furthermore, the testimony was cumulative. A reading of the record leaves no doubt that deceased struck the defendant and then attempted to strike him a second time, or at least picked up the stick in preparation to do so. On the facts appearing in this record, this exception cannot be sustained.
A State's witness, on cross-examination, gave an answer which included the hearsay statement--'Willian Barrett told me they were the holes put in there that night.' The defendant objected and moved to strike the answer. Objection was overruled and the defendant excepted. This exception is without substantial merit for two reasons: (1) The defendant moved to strike the whole answer, a part of which was competent. He did not single out the hearsay statement and make that alone the subject matter of his motion; and (2) Under the facts in this case, the hearsay statement is so insignificant that it gives us no reason to believe that its exclusion would have produced a different result. Furthermore, the answer was elicitied by the defendant.
Thereafter, the same witness testified to substantially the same facts without objection. This cured the error in admitting the hearsay statement, even if defendant's exception had been directed solely to the incompetent part of the answer. (See cases heretofore cited.)
There was evidence that the...
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State v. Williams, 494
...question will not be allowed where some of that testimony remains competent, notwithstanding the subsequent development. State v. Tyson, 242 N.C. 574, 89 S.E.2d 138; Nance v. Western Union Telegraph Co., 177 N.C. 313, 98 S.E. 838. In such case, the moving party must designate the incompeten......
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State v. McAllister
...but your verdict should be based on your own recollection of the evidence and testimony in each of these cases.' In State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955), we approved a similar statement by the trial judge. We hold that this instruction did not constitute expression of opinion ......
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State v. Wooten
...v. Sanders, 276 N.C. 598, 174 S.E.2d 487, death sentence vacated, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971); State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955). We are convinced that defendant's conviction did not stem from the fact that the jury was deprived of his testimony regar......
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State v. Anderson
...prejudicial when the witness later testifies to the same facts or the evidence is merely cumulative of other testimony. State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955); State v. Werst, 232 N.C. 330, 59 S.E.2d 835 (1950); State v. Elder, 217 N.C. 111, 6 S.E.2d 840 (1940). Several witnesse......