{
  "id": 8553452,
  "name": "STATE OF NORTH CAROLINA v. CARL VESTER TERRY",
  "name_abbreviation": "State v. Terry",
  "decision_date": "1971-12-29",
  "docket_number": "No. 7119SC765",
  "first_page": "355",
  "last_page": "359",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "year": 1950,
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    {
      "cite": "232 N.C. 374",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601837
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      "year": 1950,
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        "/nc/232/0374-01"
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  "last_updated": "2023-07-14T21:18:15.024983+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CARL VESTER TERRY"
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nThe defendant, by appropriate assignments of error, raises three questions on appeal.\n1. Did the trial court err in denying defendant\u2019s motion to dismiss at the close of the State\u2019s evidence?\n2. Did the trial court err in its instructions on the consideration of prior inconsistent statements by the witness, Richard Covington?\n3. Did the trial court err in its instructions to the jury on the offense of involuntary manslaughter?\nIn his first argument defendant contends that there was insufficient evidence of defendant\u2019s guilt to go to the jury. The defendant submits that the only evidence linking him with the death of deceased was the testimony of Richard Covington. It is argued that Covington\u2019s testimony at the preliminary hearing was inconsistent with his testimony at the trial and that this inconsistency bears directly on the weight of the State\u2019s evidence. On this basis the defendant contends that there was not sufficient evidence to go to the jury.\nA clear statement of the law on this point was given by the North Carolina Supreme Court in State v. Bowman, 232 N.C. 374, 61 S.E. 2d 107 (1950).\n\u201c ... In ruling on such motion, [motion to dismiss] the court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false, and what it proves if it be true are matters for the jury. ...\u201d\nViewing the testimony of Richard Covington in the light most favorable to the State and assuming it to be true, there is ample evidence to go to the jury. The prior inconsistent statements of the witness do not have the effect of nullifying his testimony, but are simply for the consideration of the jury in determining the credibility of the witness. Stansbury, N.C. Evidence 2d, \u00a7 46, p. 90.\nWe find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss.\nThe defendant next objects to the following segment of the trial court\u2019s charge to the jury on the effect of prior inconsistent statements:\n\u201cEvidence has been received as corroboration tending to show that at some earlier time, the witness, Richard Louis Covington, made a statement consistent with his testimony at this trial. You must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made, that it is consistent with the testimony of the witness at this trial, you can then consider this together with all the other facts and circumstances bearing upon the witness\u2019 truthfulness in deciding whether to believe or disbelieve his testimony at this trial. Evidence has been received tending to show that at an earlier time the witness, Richard Louis Covington, made a statement which conflicts with his testimony at this trial. You must not consider such earlier statements as the truth of what was said at that earlier time, because it was not made under oath at this trial. If you believe that such earlier statements were made, and it does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances as bearing upon the witness\u2019 truthfulness, in deciding whether you believe or disbelieve his testimony at this trial. ...\u201d\nThe defendant contends that this charge is ambiguous and contradictory. We do not agree.\nThe trial court has correctly charged that the prior statements of the witness are not to be treated as substantive proof, but that they could be considered as bearing on the witness\u2019 credibility. This is a correct statement of the legal effect of prior consistent and inconsistent statements. Stansbury, N.C. Evidence, 2d Ed., \u00a7 46, p. 90 and \u00a7 52, pp. 105-107. The trial court\u2019s charge in respect to this question is entirely proper. This assignment of error is overruled.\nThe defendant\u2019s final assignment of error is to the trial court\u2019s charge on involuntary manslaughter. We have carefully examined the trial court\u2019s charge on the offense of manslaughter. Taken as a whole, the charge is a fair and accurate presentation of the law. When the charge presents the law fairly and accurately, there is no ground for reversal even though some of the expressions, when standing alone, might be regarded as erroneous. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966).\nIn the entire trial we find\nNo error.\nJudges Morris and Parker concur.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Associate Attorney Walter E. Ricks III for the State.",
      "Bell, Ogburn & Redding by J. Howard Redding for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CARL VESTER TERRY\nNo. 7119SC765\n(Filed 29 December 1971)\n1. Criminal Law \u00a7 104 \u2014 motion for nonsuit \u2014 consideration of evidence \u2014 inconsistencies in testimony\nIt was immaterial, on the question of nonsuit in a homicide prosecution, that the trial testimony of the State\u2019s chief witness was inconsistent with his testimony at the preliminary hearing.\n2. Criminal Law \u00a7 89 \u2014 witness\u2019 prior statements\nStatements of a witness made prior to the trial are not to be treated as substantive proof, but they can be considered as bearing upon the witness\u2019 credibility.\nAppeal by defendant from Collier, Judge, June 7, 1971 Session of Randolph Superior Court.\nThe defendant was charged in a bill of indictment with the first-degree murder of Virginia Covington Leake, (Virginia).\nAt the trial the solicitor elected not to proceed on the charge of first-degree murder but to try the defendant on second-degree murder. The State relied on the testimony of an alleged eyewitness, Richard Louis Covington, the half brother of defendant and a relative by marriage of the decedent. Richard Covington testified that on December 25, 1969, he, the defendant and Virginia were at the defendant\u2019s house. The defendant and Virginia were in the defendant\u2019s bedroom. The witness testified that he heard an argument and went into the bedroom. He saw the defendant point a pistol at Virginia and then hit her with the pistol. It went off and she fell back.\nOn cross-examination Richard Covington admitted that he had made statements at the preliminary hearing which were inconsistent with his testimony at the trial. He admitted that he lied under oath at the preliminary hearing. The witness stated the reason for changing his testimony was that he had become a Christian since the preliminary hearing and now wanted to tell the truth.\nThe State also called as a witness W. E. Wright, Deputy Sheriff of Randolph County. He testified that he was called to the defendant\u2019s residence on December 25, 1969; that he found Virginia lying across a bed with a wound in her neck and that in his opinion she was dead.\nAt the close of the State\u2019s evidence the defendant made a motion to dismiss the case. The motion was denied.\nThe defendant offered no evidence.\nThe court charged the jury on second-degree murder, voluntary manslaughter and involuntary manslaughter.\nThe jury returned a verdict of guilty of involuntary manslaughter and judgment was entered imposing a prison sentence.\nFrom the verdict and judgment, defendant appeals.\nAttorney General Robert Morgan by Associate Attorney Walter E. Ricks III for the State.\nBell, Ogburn & Redding by J. Howard Redding for defendant appellant."
  },
  "file_name": "0355-01",
  "first_page_order": 379,
  "last_page_order": 383
}