State v. Burton, 256 N.C. 464 (1962)

Feb. 28, 1962 · Supreme Court of North Carolina

256 N.C. 464

STATE v. HATTIE BELL BURTON.

(Filed 28 February, 1962.)

1. Appeal and Error § 41; Criminal Law § 155—

Where all of the evidence of a particular character is stricken except evidence first elicited by defendant on cross-examination, with respect to which there is no objection or exception, defendant cannot complain.

a. Appeal and Error § 19; Criminal Law § 154—

An assignment of error which fails to present the error relied on without the necessity of going beyond the assignment itself is ineffective.

Winborne, C.J., not sitting.

Appeal by defendant from Copeland, S.J., August 1961 Special Term Of CRAVEN.

This is a criminal action. The bill of indictment charges that defendant, Hattie Bell Burton, assaulted Frank Burton (her husband) with a deadly weapon, with intent to kill, inflicting serious injury not resulting in death. Defendant pleads not guilty.

The State’s evidence tends to show: On 28 May 1961 a police officer was called to the Burton home. He met Frank on the porch and went in the house with him in order for Frank to get some clothes. In the officer’s presence defendant told Frank that if he came back in the house that night she was going to kill him. The officer left as Frank was leaving the house. About 45 minutes later the officer went to the hospital in response to a call. He found Frank at the hospital with a pistol wound in his wrist. The officer obtained a warrant and arrested defendant. At the time of the arrest defendant stated to the officer that she had shot Frank with a pistol and should have killed him.

Defendant offered no evidence. The court submitted the case to the jury on the lesser and included offense of assault with a deadly weapon. The jury returned a verdict of guilty.

The court entered judgment and imposed an active 12 months prison sentence.

Defendant appealed.

Attorney General Bruton and Assistant Attorney General McGal-liard for the State.

Charles L. Abernethy, Jr., for defendant.

Per Curiam.

The assignments of error are without merit. The crucial assignments relate to the admission of certain testimony of the arresting officer as to what Frank Burton told him in the absence of defendant. The only testimony of this character admitted and not stricken was first elicited by defendant on cross-examination, and with respect to which there was no objection or exception. Furthermore, these assignments are not sufficient in form to present the errors relied on without the necessity of going beyond the assignments themselves to learn what the questions are. Rule 21, Rules of Practice in Supreme Court; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E. 2d 271. See 1 Strong: N.C. Index, Appeal and Error, s. 19, p. 90.

The evidence is sufficient to support the verdict. The punishment is not in excess of that provided by law.

No error.

WiNBORN®, C.J., not sitting.