{ "id": 8546966, "name": "STATE OF NORTH CAROLINA v. DAHL THOMAS CARNES", "name_abbreviation": "State v. Carnes", "decision_date": "1973-04-11", "docket_number": "No. 7326SC151", "first_page": "19", "last_page": "23", "citations": [ { "type": "official", "cite": "18 N.C. App. 19" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "23 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "222 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630934 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/222/0455-01" ] }, { "cite": "162 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559668 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0186-01" ] }, { "cite": "179 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555170 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0638-01" ] }, { "cite": "154 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567155 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0270-01" ] }, { "cite": "188 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 214", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548114 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0214-01" ] }, { "cite": "187 S.E. 2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573537 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0718-01" ] }, { "cite": "74 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604747 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0001-01" ] } ], "analysis": { "cardinality": 579, "char_count": 9867, "ocr_confidence": 0.514, "pagerank": { "raw": 9.961721986493818e-08, "percentile": 0.53724406326392 }, "sha256": "cab31a50b5ce129f181de114d57897f19dd80d6abcafbd8d40759afb54289f27", "simhash": "1:c1e9742ab61e99ba", "word_count": 1652 }, "last_updated": "2023-07-14T21:14:36.293491+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Morris concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAHL THOMAS CARNES" ], "opinions": [ { "text": "BRITT, Judge.\nDefendant first assigns as error the trial court\u2019s incarceration of defendant pending the start of his trial on the following morning.\nIn State v. Smith, 237 N.C. 1, 74 S.E. 2d 291 (1953), opinion by Justice (later Chief Justice) Parker, we find:\n\u201c \u2018 * * * It is within the discretion of the trial court whether accused should be placed in custody; and the court\u2019s proper exercise of discretion is not error where the jury were unaware that accused had been placed in custody, or were not influenced by that fact.\u2019 23 C.J.S., Criminal Law, Sec. 977.\u201d\nH\u00bb H\u00bb\n\u201c \u2018In the absence of constitutional or statutory provisions to the contrary, the general rule is that the inherent power of the court to insure itself of the presence of the accused during the trial may, in its discretion, be exercised so as to order a person who has been at liberty on bail, into the custody of the sheriff during trial of the case ... It is not necessary for the court, in exercising its discretionary power to remand during trial, to file any reasons for such action; and if such order is made, it must be assumed, in the absence of a contrary showing, that the court acted in good faith and upon sufficient grounds.\u2019 6 Am. Jur., Bail and Recognizance, Sec. 101.\u201d\nIn the instant case, defendant does not contend nor does the record show that he was placed in the custody of the sheriff in the jury\u2019s presence or that the jury was influenced by his being placed in custody. We perceive no error.\nDefendant assigns as error the trial court\u2019s restriction of defendant\u2019s cross-examination of State\u2019s witnesses. We are unable to ascertain whether the trial court\u2019s rulings were prejudicial since the record does not disclose what the witnesses\u2019 testimony would have been had they been permitted to answer and the burden is on appellant to show prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20 (1972); State v. Royall, 14 N.C. App. 214, 188 S.E. 2d 50 (1972). This assignment of error is without merit.\nDefendant next assigns as error the failure of the trial court to declare a mistrial \u201cdue to the prejudicial and inflammatory questions and remarks of the Solicitor.\u201d Defendant\u2019s main contention under this assignment relates to testimony tending to suggest defendant\u2019s involvement with persons in the drug traffic. The first time such testimony was given, defendant moved to strike. The motion was sustained and the trial judge instructed the jury that they were not to consider the testimony in their deliberations. Defense counsel moved for a mistrial arid this motion was overruled. It is well established in our criminal law that if the court properly withdraws incompetent evidence from jury consideration and instructs the jury riot to consider it, this cures error in its admission in all but exceptional circumstances. State v. Aycoth, 270 N.C. 270, 154 S.E. 2d 59 (1967); State v. Bronson, 10 N.C. App. 638, 179 S.E. 2d 823 (1971). Whether the incompetent evidence should be deemed cured of prejudicial effect depends upon the nature of the evidence and circumstances of the individual case. State v. Aycoth, supra. Where the trial court has instructed the jury not to consider improper testimony, and where as in the instant case there is ample competent evidence from which the . jury could find defendant guilty, a mistrial is not warranted. State v. Bronson, supra.\nAlso under this assignment of error, defendant maintains that the solicitor\u2019s reference to defendant\u2019s .25 caliber pistol as a \u201cSaturday Night Special\u201d constituted error. In view of the fact that defendant had already admitted ownership of said gun and had denied familiarity with \u201cSaturday Night Specials,\u201d we do not see how this reference prejudiced defendant. The assignment of error is overruled.\nBy his fifth assignment of error, defendant contends the court erred (1) in failing to charge the jury on the defense of intoxication as requested by defendant and (2) in inadequately charging on intoxication as a defense. This assignment of error is without merit.\nThe record discloses that while the requested instruction was not given in the exact language of the request, it was given in substance. Where a defendant is entitled to requested instructions, the court does not have to give them verbatim; it is sufficient if the requested instructions are given in substance. State v. Howard, 274 N.C. 186, 162 S.E. 2d 495 (1968). We have carefully reviewed that portion of the court\u2019s charge on intoxication as a defense and believe that the charge fairly defined defendant\u2019s rights. A charge on intoxication as a defense in language substantially similar to the one given in the case at bar was found to be proper in State v. Hairston, 222 N.C. 455, 23 S.E. 2d 885 (1943).\nWe have considered all of defendant\u2019s assignments of error and find them to be without merit.\nNo error.\nJudges Campbell and Morris concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by James E. Magner, Jr., Assistant Attorney General, for the State.", "Paul L. Whitfield for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAHL THOMAS CARNES\nNo. 7326SC151\n(Filed 11 April 1973)\n1. Criminal Law \u00a7 98\u2014 defendant taken into custody before trials \u2014 no error\nThere was no error in the trial court\u2019s incarceration of defendant pending the start of his trial on the following morning where there was no showing that defendant was placed in the custody of the sheriff in the jury\u2019s presence or that the jury was influenced by his being placed in custody.\n2. Criminal Law \u00a7 169\u2014 exclusion of testimony \u2014 failure to show what testimony would have been \u2014 no error\nDefendant failed to show prejudicial error in the trial court\u2019s restriction of his cross-examination of State\u2019s witnesses where the record did not show what the witnesses\u2019 testimony would have been had they been permitted to answer.\n3. Criminal Law \u00a7 96\u2014 incompetent evidence withdrawn \u2014 error cured\nIn a prosecution for unlawfully discharging a firearm into an occupied dwelling where the trial court instructed the jury to disregard testimony tending to suggest defendant\u2019s involvement with persons in the drug traffic immediately after the testimony was given, and where there was ample competent evidence from which the jury could find defendant guilty, a mistrial was not warranted.\n4. Criminal Law \u00a7\u00a7 6, 119\u2014 defense of intoxication \u2014 requested instructions \u2014 no error\nThe defendant\u2019s requested instructions on intoxication as a defense, though not given verbatim, were given in substance, and the court\u2019s charge fairly defined defendant\u2019s rights.\nAppeal by defendant from Friday, Judge, 28 August 1972 Schedule \u201cC\u201d Criminal Session, Mecklenburg Superior Court.\nDefendant was tried on a bill of indictment charging him with unlawfully discharging a firearm into an occupied building. Evidence most favorable to the State tended to show:\nOn 9 April 1972 at 7:00 p.m. one Henry Brake (Brake) picked up his date, Miss Brenda Kay Dunham (Miss Dunham), at her apartment in the Williamsburg Apartments Complex in Charlotte. Around 11:30 p.m. Brake and Miss Dunham went to the Ramada Inn Lounge (Lounge) on Independence Boulevard and there saw the defendant. Some two weeks previous to this date Miss Dunham and defendant, a married man with a family, had \u201cbroken up\u201d after going together for approximately four years. Defendant remained at the Lounge the entire time that Miss Dunham and Brake were there from 11:30 p.m. until 1:15 or 1:30 a.m. Defendant exchanged no conversation with either Miss Dunham or Brake (whom he had known for about a year) at the Lounge. Brake and Miss Dunham left the Lounge and went to Miss Dunham\u2019s apartment.\nUpon arriving at the apartment, Brake and Miss Dunham observed defendant riding through the parking lot of the apartment complex in a black and white Mercury. Shortly thereafter, the telephone rang; Miss Dunham answered and the caller was defendant who said that he wanted to talk to her. Miss Dunham replied that she had company and hung up. Defendant called again and Brake answered, telling defendant to \u201ccall back tomorrow.\u201d About two or three minutes after the second call, Brake and Miss Dunham heard loud, hard knocking on her apartment door which was chained and locked. Defendant hollered several times, \u201cLet me in.\u201d The knocking damaged the door, splitting the left upper panel an inch or so. Brake told Miss Dunham to call the police and then told defendant that he was going to open the door.\nAs Brake attempted to unhook the top door chain, which was stuck in its track, Brake heard a gunshot and \u201cfelt something knick\u201d the inside calf of his right leg. Thereafter, Brake observed a hole in the lower door panel and a trench in the floor an inch and a half long and three quarters of an inch deep. Charlotte Police Officer Lawson (Lawson) arrived at Miss Dunham\u2019s apartment at approximately 2:00 a.m. About five minutes later, the telephone rang; Brake answered upstairs and Lawson lifted a receiver in the kitchen at the same time. Brake asked the caller, \u201cDahl, did you know you shot me?\u201d Defendant answered, \u201cI didn\u2019t mean to shoot you. You are just a victim of circumstances.\u201d Lawson found a .25 caliber bullet in the apartment.\nPolice officers obtained a warrant to search defendant\u2019s mobile home premises and found a .25 caliber automatic pistol in or near the steps leading to his mobile home. Defendant testified, \u201cAfter I had that last conversation with Mr. Brake, I went home. In the process of going home, I was thinking that when he said that I had shot him, I didn\u2019t know what he was talking about, whether I had really hurt him or what, and it scared me and I hid the .25 caliber automatic under my steps.\u201d\nDefendant pleaded not guilty. From a jury verdict of guilty as charged and judgment imposing a prison sentence of not less than eighteen nor more than twenty-four months, defendant appealed.\nAttorney General Robert Morgan by James E. Magner, Jr., Assistant Attorney General, for the State.\nPaul L. Whitfield for defendant appellant." }, "file_name": "0019-01", "first_page_order": 43, "last_page_order": 47 }