State v. Wilson

• Decision Date: 15 March 1972
• Docket Number: No. 1,1
• Citation: 187 S.E.2d 22,280 N.C. 674
• Parties: STATE of North Carolina v. Zollie WILSON, Jr
• Court: North Carolina Supreme Court

Page 22

187 S.E.2d 22

280 N.C. 674

STATE of North Carolina v. Zollie WILSON, Jr.

No. 1.

Supreme Court of North Carolina

March 15, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Eugene Hafer and Staff Atty. Donald A. Davis, Raleigh, for the State.

Clayton & Ballance by Frank W. Ballance, Jr., Warrenton, for defendant.

LAKE, Justice.

The defendant assigns as error: (1) The admission in evidence, over objection, of the shotgun, he contending it had not been identified as the weapon used in the shooting of Alston; (2) the failure of the State to prove the cause of death and the admission of alleged hearsay evidence as to the fact of death; and (3) the failure of the court to instruct the jury, as requested by the defendant, that 'when a person commits an act without being conscious thereof, such act is not a crime even though if committed by a conscious person it would be a crime.' There is no merit in any of these assignments of error.

Other exceptions and assignments not brought forward into the brief are deemed abandoned. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; State v. Barber, 270 N.C. 222, 154 S.E.2d 104; Branch v. State, 269 N.C. 642, 153 S.E.2d 343. Rule 28, Rules of Practice in the Supreme Court. We have, nevertheless, reviewed the entire record before us and find no merit in the assignments of error so abandoned.

As to the shotgun introduced in evidence, the State's witness William Southerland testified that, after leaving the defendant in Henderson following the shooting, Southerland threw the gun out of the car into a ditch and thereafter told Deputy Capps where it was. Deputy Capps testified that, upon receipt of this information, he went to the place described by Southerland, found a shotgun about 20 feet from the other side of the ditch, he delivered the gun so found to the State Bureau of Investigation, it was received back from the Bureau by another deputy and, while it had no identifying feature known to him, it was his opinion that the gun offered in evidence was the same gun so found by him.

Weapons may be admitted in evidence where there is evidence tending to show that they were used in the commission of a crime. State v. Sneeden, 274 N.C. 498, 502, 164 S.E.2d 190; Stansbury, North Carolina Evidence, 2d Ed, § 118. We deem the testimony of witnesses Southerland and Capps, above mentioned, sufficient to identify the gun so offered in evidence as the one used in the shooting of Alston, but if it were not, so as to make the admission of this weapon in evidence an error, it was clearly harmless in view of the testimony of five eyewitnesses that the defendant shot Alston with a shotgun. While relevant, the identification and the introduction in evidence of the weapon used is not essential to a conviction of murder. In State v. Macklin, 210 N.C. 496, 187 S.E. 785, a shotgun found in the defendant's room was held properly admitted in evidence, it having been testified that it was 'like the one' with which the defendant had been seen on the night the deceased was shot.

The contention that the court erred in denying the motion for arrest of judgment because there was no competent evidence of the death of Alston, or as to the cause of such death, is without merit. The State's witness Hargrove testified that he picked Alston up and carried him to the hospital after the shooting and that 'when we got to the hospital he was dead.' The record shows that at this point the defendant objected and the court overruled the objection. The record does not show the question in response to which the witness so answered or that the objection was interposed to such question. An objection to an answer responsive to a question comes too late after the witness has so answered the question. Johnson v. Lamb, 273 N.C. 701, 709, 161 S.E.2d 131; Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41.

On cross-examination, this witness testified: 'When I arrived at the hospital he was dead. The doctor said he was dead.' Thereupon, in response to questions by the court, not set forth in the record on appeal, the witness testified: 'I didn't examine him. When we got to the hospital, I went in and got some stretchers, we got him out of the car and laid him on it and toted him in. He wasn't moving no more than his arm was moving by me picking him up and laying him down.' The defendant's motion to strike the answer was overruled. The question not being shown in the record before us, we cannot assume that the answers of the witness both to the question by the defendant's counsel and to the question by the court were not responsive. The witness was obviously testifying on the basis of his own observation of Alston. The statement of the doctor was apparently recounted by the witness as corroboration of his own observation and testimony.

Deputy Sheriff Capps testified: 'I went in the back room (of the hospital) and saw Charlie Wilbert Alston. He was dead at the time I saw him.' This witness then identified the photograph of the body taken by him, which photograph was introduced in evidence and used by the witness to illustrate his testimony as to the location of the wound on the body. There was no error in the admission of the photograph in evidence for this purpose. The record not disclosing the question propounded to the witness Capps, it must be assumed that his testimony was responsive thereto. Consequently, there being no objection to the question, the motion to strike the answer was properly...