State v. Britt

174 S.E.2d 69 (1970)

8 N.C. App. 262

STATE of North Carolina v. Charles W. BRITT, Jr.

No. 703SC270.

Court of Appeals of North Carolina.

May 27, 1970.

Certiorari Denied July 31, 1970.

*71 Atty. Gen. Robert Morgan and Staff Atty. Christine Y. Denson, Raleigh, for the State.

Robert G. Bowers and E. Lamar Sledge, New Bern, for the defendant appellant.

MALLARD, Chief Judge.

On this record, the defendant entered 89 exceptions. In his assignments of error, he refers to only 26 of them. The other 63 are deemed abandoned. Rule 28 of the Rules of Practice in the Court of Appeals. These 26 exceptions are considered under the five questions presented on this appeal.

1. Defendant asserts that the trial judge committed error in refusing to order that the defendant be furnished with a transcript of the first trial. The only reason asserted by the defendant in his motion for a transcript was that because a non-indigent defendant could purchase a transcript, that he, an indigent, was entitled to a transcript of the evidence and testimony given at the first trial which resulted in a mistrial. He does not allege that the court reporter who took the evidence at the first trial was not available to him as a witness. He was represented at both trials by the same lawyers. Forsberg v. United States, 351 F.2d 242 (9th Cir. 1965). The second trial took place about a month after the first trial. There was no showing that the cross-examination by the defendant of the State's witnesses was restricted in any way. There was no argument by the solicitor relating to discrepancies in the testimony as there was in United States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir. 1969). The defendant had the right to use the court reporter if there was a conflict in the State's testimony. We think that the cases cited by the defendant in support of his contentions are distinguishable.

It the case of Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), cert. den., 379 U.S. 905, 85 S. Ct. 198, 13 L. Ed. 2d 178 (1964), the Court said:

"There is no absolute right to have the transcript of a prior trial against the contingency, now urged, that some witness at the second trial may give inconsistent testimony. Any inconsistency in testimony arising at the second trial could readily be dealt with by calling the reporter of the prior trial to read the earlier testimony. Appellant had the same counsel at both trials. The District Court did not abuse its discretion in denying appellant's bare demand for a transcript in these circumstances."

We are of the opinion and so hold that the factual situation here does not reveal such a need for the transcript of the evidence at the first trial that the denial thereof was a deprivation of a basic essential of the defendant's defense. State v. Keel, 5 N.C.App. 330, 168 S.E.2d 465 (1969).

2. Defendant asserts that the trial judge committed error in refusing to instruct the prosecution as requested in his motion in limine. By this preliminary motion, the defendant sought to prohibit the introduction of evidence of the defendant's fingerprint. The defendant's fingerprints were found on the butcher knife used to stab the deceased. The butcher knife was found in the home of the deceased after her death. We think that this evidence was competent, and, therefore, the denial of defendant's motion was proper.

3. Defendant contends that the trial court committed error in admitting the fingerprint evidence (1) because the *72 defendant was shown to have been at the scene of the crime earlier that day and (2) there was at least one fingerprint on the knife which was unidentifiable. The cases cited by defendant in support of this contention are distinguishable. We hold that the fingerprint evidence was competent. It tended to corroborate the testimony of the State's witness that the defendant had used the knife in stabbing the deceased in the back.

4. The defendant contends that the trial court committed error by failing to instruct the jury that "each must decide the case upon his own opinion of the evidence, that the defendant was entitled to every inference in his favor and that where two inferences one consistent with innocence and one inconsistent, the defendant is entitled to the inference which is consistent with innocence; and as to the importance of the presumption of innocence under our law." The defendant made no written request for instructions on any particular phase of the case. The court properly charged that the defendant was presumed to be innocent and that "(t)he burden of proof is upon the State to satisfy you on the evidence and beyond a reasonable doubt of the defendant's guilt." Thus, the court properly required that in order to convict, the State must prove the defendant guilty from the evidence and beyond a reasonable doubt. We hold that no error is made to appear in the charge of the court to the jury.

5. The defendant contends that the trial court committed error in failing to allow his motion for nonsuit. There was ample evidence of the defendant's guilt to require the submission of the case to the jury. The exceptions to the denial of the motion for judgment as of nonsuit cannot be sustained.

In the trial we find no error.

No Error.

MORRIS and GRAHAM, JJ., concur.