State v. Feaganes

158 S.E.2d 89 (1967)

272 N.C. 246

STATE v. David S. FEAGANES.

No. 672.

Supreme Court of North Carolina.

December 13, 1967.

*90 Cahoon & Swisher, by Robert S. Cahoon, Greensboro, for defendant appellant.

T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.

PLESS, Justice.

The defendant refers to thirty-nine assignments of error and eighty-three exceptions in his brief. However, no argument or citation is presented in support of many of them; and under Rule 28, Rules of Practice in the Supreme Court, they are deemed abandoned.

The first exception presented is that the witness Rosetta Ireland was permitted over the defendant's objection to testify that as the defendant and the deceased were leaving the room she told Beal's wife "come and stop them; they're going to fight." This was "a declaration uttered simultaneously, or almost simultaneously, with the occurrence of the act" and is competent as a part of the res gestae. Staley v. Royal Pines Park, 202 N.C. 155, 162 S.E. 202.

The evidence showed that Feaganes had been a Special Agent with Internal Revenue and that he was then an Estate Tax Examiner. The State was permitted to show over the objection of the defendant that he was not permitted or required to carry a gun in the performance of his duties. In this, there was no error.

The defendant excepted to the identification of several photographs of the body of the deceased which showed the location of the wounds on his body, and later to the fact that they were permitted to be shown to the jury. The record does not show that these photographs were offered as exhibits, but we find the defendant's exception in this regard without merit since the Court instructed the jury: "[Y]ou will consider these photographs for the purpose of illustrating the testimony of the witness, if you find they do illustrate his testimony, and for that purpose only." This instruction is in accord with the rule stated in State v. Perry, 212 N.C. 533, 193 S.E. 727.

The defendant further excepts to the evidence of Dr. Allan B. Coggeshall, the County Medical Examiner, who was *91 stipulated to be a medical expert. He testified, in summary, that he examined the body of the deceased, described the wounds he found and gave it as his opinion that the wounds could have been caused by a bullet. These exceptions are without merit. State v. Knight, 247 N.C. 754, 102 S.E.2d 259; State v. Mays, 225 N.C. 486, 35 S.E.2d 494.

The defendant took fifty-nine exceptions to the charge of the Court, making twenty-eight assignments of error. Considering the charge as a whole, we find that it is free from substantial error. It is a standard charge dealing with the subjects of murder in the second degree, manslaughter, self-defense, fighting willingly, malice, and contains a satisfactory recapitulation of the evidence and the contentions of the parties.

The defendant has many exceptions that take up a full page of the mimeographed record. These exceptions are vague and at the same time fulsome; we find them without merit. Some exceptions are based upon a single sentence which, standing alone, may be subject to criticism but when read with the preceding or following sentence constitutes an accurate statement of the law.

The defendant also criticizes the Court's statement of the evidence and some of the contentions. However, the defendant failed to call the alleged inaccuracies to the attention of the Court at the time, and they are therefore waived. State v. Case, 253 N.C. 130, 116 S.E.2d 429. Nevertheless, we have given them consideration and do not find that the defendant could have been prejudiced thereby. The defendant made no request for additional or different statements of the evidence, contentions of the parties, or any aspect of the law of the case, although he now claims that the charge was in violation of G.S. § 1-180. We fail to find error in this respect.

This was a case in which the defendant admitted the shooting, and the deceased died immediately. There was no question that his death was caused by the bullet wounds. The evidence offered by the defendant, if accepted by the jury, would have justified a verdict of acquittal. It apparently accepted the State's evidence to the effect that both parties willingly entered into the fight and that the defendant had failed to show justification for the killing. The statements of the defendant in which he expressed no regret in having killed his fellow man but rather lightly referred to his embarrassment in being required to shoot the deceased twice and referring to the deceased as a s. o. b. probably caused the jury to reject his claim of self-defense.

A careful consideration of the defendant's exceptions fails to reveal prejudicial error which would justify a new trial.

No error.