State v. Gooding, 196 N.C. 710 (1929)

March 6, 1929 · Supreme Court of North Carolina

196 N.C. 710

STATE v. JOHN GOODING.

(Filed 6 March, 1929.)

1. Assault Upon a Female — Evidence—Weight and Sufficiency.

Upon the issue oí whether the defendant committed an assault upon a female, her testimony that she was suddenly caught from behind by her arms by the defendant and that she freed herself by her violent exertions and that the defendant explained that he wanted to know how her arms felt, is sufficient to take the case to the jury.

2. Appeal and Error — Record—Matters Not Set Out in Record Deemed Without Error.

On appeal the charge of the trial court is presumed to be correct when it is not set out in the record.

3. Trial — Reception of Evidence — Motions to Strike Out.

Where exception is taken to a question asked a witness and the answer of the witness is not responsive, a motion to strike out the answer should be made, and where this is not done the exception will not be considered on appeal.

4. Trial — Instructions—Requests for Instructions.

If a party desires that an unresponsive answer not be considered by the jury he should request an instruction to that effect.

Appeal by defendant from Nunn, J., and a jury, at September Term, 1928, of JoNEs.

No error.

The defendant was indicted for an assault and battery on one Callie Lee Hill, a female. There was a verdict of guilty rendered by the jury, and the defendant was sentenced to be confined in the common jail for eighteen months and assigned to work the roads of Lenoir County.

Punishment prescribed in C. S., 4215.

The defendant made the exceptions and assignments of- error which will be considered in the opinion, and appealed to the Supreme Court.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State. .

Shaw & J ones for defendant.

Pee Cubiam.

The defendant at the close of the State’s evidence and at the close of all the evidence made a motion for judgment’ of nonsuit. O. S., 4643. This motion cannot be sustained.

The prosecutrix testified “that she was the wife of Tom Hill; that she went into the store of the defendant, John Gooding, to get some kerosene; that the wife and an 18-year-old daughter were in the kitchen, where she had gone and that she had her little child with her. This was all in the day time. That the defendant came in, and the first time sbe knew be was there be grabbed ber by tbe arms from tbe back and beld ber so tight sbe bad to use all ber strength to release herself; that tbe defendant stated when sbe bad released herself that be just wanted to see bow ber arms felt.”

Tbe charge is not set out in tbe record; tbe presumption is that tbe court below correctly instructed tbe jury tbe law as to what constituted assault and battery and applied tbe law to tbe facts.

Any unlawful beating or other wrongful physical violence or constraint inflicted on a human being without bis or ber consent is a battery. Tbe evidence was sufficient to be submitted to tbe jury — tbe probative force was for them.

Tbe following question was asked tbe prosecuting witness, to which exception and assignment of error was duly made: “Q. Had be been to your bouse before? Answer: I have beard him say that be could bug and kiss any of tbe white women in tbe community, and that be did bug and kiss all of tbe other white women in tbe community.”

We could not say that tbe question was objectionable, but tbe answer seems not to be responsive to tbe question. It is well settled in this jurisdiction that defendant’s objection should have been accompanied by a motion to strike tbe objectionable statement from tbe record if be deemed it incompetent and prejudicial. If be desired to do so, be should have requested an instruction to tbe effect that tbe jury should not consider it as evidence. Luttrell v. Hardin, 193 N. C., at p. 269. In tbe record we find

No error.