State v. Britt, 225 N.C. 364 (1945)

June 6, 1945 · Supreme Court of North Carolina

225 N.C. 364

STATE v. HILBRETH BRITT.

(Filed 6 June, 1945.)

1. Criminal Law § 41(1—

On trial upon an indictment for homicide, it is competent for the State to contradict the testimony of defendant’s wife, by showing prior inconsistent statements made by her, and a person, to whom the said wife made such contradictory statements, is a competent witness for that purpose.

2. Criminal Law §§ 41d, 48b, 53g—

In a criminal prosecution, where the State offered evidence of statements made by defendant’s wife, as to the circumstances of the killing, inconsistent with her testimony for defendant, and defendant failed to request that same he considered only for the purpose of impeaching or contradicting his wife’s testimony, such evidence becomes substantive and a contention of the State based thereon, given in. the charge to the jury, without objection at the time, will not be held for error.

3. Criminal Law § 53g—

Ordinarily, the failure to object in apt time to a statement of contention by the court constitutes waiver of the right to object.

4. Appeal and Error §§ 24, 29—

An argument unsupported by exception is as ineffective as an exception without argument or citation of authority.

5. Appeal and Error §§ 23, 24: Criminal Law § 53g—

An exception, for failure to charge the jury as required by G-. S., 1-180, must be taken in the same manner as any other exception to the charge, and an assignment of error based thereon must particularize and point out specifically wherein the court failed to charge the law arising on the evidence — otherwise it becomes a mere broadside and will not be considered unless pointed out in some other exception.

Appeal by defendant from Hamilton, Special Judge, at October Term, 1944, of RobesoN.

Criminal prosecution tried upon indictment charging the defendant with the felonious slaying of one letter T. Connor.

On 9 July, 1944, the defendant and his wife, while in their automobile going from their home to the home of the defendant’s mother, Mrs. Emeline Rritt, picked up the deceased. The deceased had a fruit jar containing about a quart of liquor. Both the defendant and the deceased drank some of the liquor after arriving at the Britt home. Immediately thereafter they began to quarrel and to curse each other. The quarreling began while the defendant and the deceased were in the kitchen of. the Britt home. Shortly thereafter, the defendant was standing in the front yard of the Britt home, talking to his mother, who was sitting on the porch. The deceased came from the kitchen and sat down on the porch. The quarrel was renewed, and the evidence is sharply conflicting as to what was said and done. The defendant offered testimony to the effect that the deceased approached him with a knife and that he wrung the knife from his hand, flipped him over his shoulder and threw him on the porch, and that the defendant never touched him thereafter. The State offered evidence tending to show that the defendant was a young man, 30 years of age, and weighed about 168 to 175 pounds. The deceased was a man 64 years of age, and. weighed from 130 to 140 pounds. Tbe defendant was a member of tbe United States Naval Forces and bad been trained in tbe art of jiujitsu. Tbat after tbe deceased bad been thrown on tbe porch, tbat tbe defendant jumped on him and choked him or doubled up tbe body of tbe deceased in such manner as to prevent him from breathing. When tbe defendant got off tbe body of tbe deceased, at tbe request of bis stepfather, Heman Britt, tbe face of tbe deceased was purple and be died without regaining consciousness.

Verdict: Guilty of manslaughter. Judgment: Imprisonment in tbe State’s Prison for not less than four nor more than six years.

Tbe defendant appeals, assigning error.

Attorney-General McMullan and Assistant Aitorneys-General Rhodes and Moody for the State.

T. A. McNeill and F. D. Haclcett for defendant.

Denny, J.

Tbe appellant has abandoned bis first seven and tbe tenth exceptions.

Tbe court, over tbe objection of tbe defendant, permitted Willie M’Wbite, a State’s witness, to testify to a conversation which be bad with tbe wife of tbe defendant, in tbe absence of tbe defendant, as to tbe manner in which tbe deceased, Jetter T. Connor, came to bis death. Tbe wife of tbe defendant bad already been on tbe witness stand and testified tbat tbe deceased attacked tbe defendant with a butcher knife. Her testimony was in conflict with her prior statements, according to tbe testimony of tbe witness M’Wbite. And, in giving tbe State’s contentions in tbe charge to tbe jury, bis Honor said: “Tbe State contends . . . tbat you should be satisfied from tbe testimony of another M’Wbite, Willie, I believe they called him, who shortly thereafter bad gone to talk with tbe witness, Columbia, and tbat she told him tbat her husband bad killed him with bis band, and no mention was made of any knife, and from all tbe statements you should be satisfied, in tbe first place, beyond a reasonable doubt, there was no knife, and in tbe second place, you should be satisfied tbe knife bad been taken from tbe possession of tbe decedent and be was wholly and completely unarmed or disarmed at tbe time tbe blow was administered tbat proved to be fatal to tbe decedent, and tbat at least you should return a verdict of at least guilty of manslaughter.”

Tbe exceptions to tbe admission of tbe above evidence and to the foregoing part of tbe charge, constitute tbe defendant’s sixth assignment of error.

It was competent for tbe State to contradict tbe testimony of tbe defendant’s wife, by showing prior inconsistent statements made by her, and tbe evidence of tbe witness M’Wbite was competent for that purpose. However, tbe defendant did not request that this evidence be considered only for tbe purpose of contradicting or impeaching tbe testimony of bis wife and not as substantive testimony against him. Therefore, tbe objection to its admission cannot be sustained. S. v. Shepherd, 220 N. C., 377, 17 S. E. (2d), 469; S. v. Casey, 212 N. C., 352, 193 S. E., 411; S. v. Ray, 212 N. C., 725, 194 S. E., 482; Rule of the Supreme Court, 221 N. C., 558. Likewise, tbe evidence having been generally admitted, a contention of tbe State based thereon, given in tbe charge to tbe jury, without objection at tbe time, will not be held for error. S. v. King, 219 N. C., 667, 14 S. E. (2d), 803; S. v. Johnson, 219 N. C., 757, 14 S. E. (2d), 792; S. v. Bowser, 214 N. C., 249, 199 S. E., 31. Ordinarily tbe failure to object in apt time to a statement of contention by tbe court, constitutes waiver of tbe right to object. S. v. Wells, 221 N. C., 144, 19 S. E. (2d), 243.

Exceptions eleven through fifty-six are also directed to tbe charge of tbe court. But none of these exceptions are brought forward in appellant’s brief and argued or authorities cited in support thereof, as required by Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., 563. Hence, these exceptions will be treated as abandoned.

Tbe appellant does argue in bis brief that tbe trial court failed to “state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon,” as required by G. S., 1-180, but there is no exception in tbe record based on such failure on tbe part of the court, to comply with tbe statute. An argument unsupported by exception is as ineffective as an exception without argument or citation of authority. Curlee v. Scales, 223 N. C., 788, 28 S. E. (2d), 576. An exception for failure to charge tbe jury as required by G. S., 1-180, must be taken in tbe same manner as any other exception to the charge and an assignment of error based thereon, “must particularize and point out specifically wherein tbe court failed to charge the law arising on the evidence.” S. v. Dilliard, 223 N. C., 446, 27 S. E. (2d), 85. Failure to particularize and point out wherein tbe court failed to comply with the statute will constitute such exception a mere broadside exception, and it will not be considered, unless it is pointed out in some other exception or exceptions to the charge wherein tbe court failed to comply with the statute. S. v. Friddle, 223 N. C., 258, 25 S. E. (2d), 751, and S. v. Billiard, supra, and cases there cited. A careful consideration of tbe charge, however, discloses no prejudicial error.

Tbe remaining exceptions are formal and cannot be sustained.

In the trial below, we find

No error.