{
  "id": 8556870,
  "name": "STATE OF NORTH CAROLINA v. DELTON HARRIS",
  "name_abbreviation": "State v. Harris",
  "decision_date": "1974-05-15",
  "docket_number": "No. 7426SC388",
  "first_page": "550",
  "last_page": "552",
  "citations": [
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      "cite": "21 N.C. App. 550"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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      "cite": "282 N.C. 357",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "23 S.E. 2d 909",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1943,
      "opinion_index": 0
    },
    {
      "cite": "222 N.C. 520",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8631152
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      "year": 1943,
      "opinion_index": 0,
      "case_paths": [
        "/nc/222/0520-01"
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    {
      "cite": "161 S.E. 2d 568",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1968,
      "opinion_index": 0
    },
    {
      "cite": "274 N.C. 106",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559459
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      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/nc/274/0106-01"
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  "analysis": {
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  "last_updated": "2023-07-14T21:32:29.924632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Hedrick and Carson concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DELTON HARRIS"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDefendant first assigns as error the conclusion of the court that the in-court identification by the State\u2019s witnesses was of independent origin and not the result of out-of-court confrontations. In his argument, defendant first restates the question involved and then says: \u201cThe appellant argues and contends that the evidence presented does not sustain such a ruling, especially with regard to Dewitt Tutterow and his wife, Dorothy Elaine Tutterow.\u201d Such a statement presents no argument, but is merely a restatement of his assignment. Rule 28, Rules of Practice in the Court of Appeals of North Carolina, provides: \u201cExceptions in the record not set out in appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.\u201d In view of this rule, we treat this exception as abandoned.\nDefendant next assigns as error the denial of his motion for judgment as of nonsuit interposed at the close of all the evidence. Viewing the evidence in the light most favorable to the State, as is required upon this motion, the evidence tends to show: On 12 June 1973, defendant, along with another man, went into Tutterow\u2019s Grocery at 1200 North Davidson Street in Charlotte. Defendant was carrying a shotgun. Upon entering, one of the two stated, \u201cThis is a holdup.\u201d Defendant required Dewitt Tutterow, the owner of the grocery, at gunpoint, to empty his pockets. The other man rifled the cash register. The two took between $400 and $450. We hold that the evidence was sufficient for submission to the jury and the assignment of error is overruled.\nDefendant\u2019s third assignment of error concerns remarks in the State\u2019s closing argument to the jury. A review of this exception shows that what transpired was nearly identical to the situation in State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968). There, the court, at page 114, said defendant \u201cshould have excepted and moved for a mistrial before the case went to the jury . ...\u201d In Peele, the court went on to state the rule that the arguments of the solicitor and counsel are left largely to the discretion of the trial court. No abuse is shown here. The court gave instructions on the matter, and no motion for mistrial was made at the time of the remarks. This assignment is overruled.\nDefendant\u2019s final assignment is to the denial of his motion for a new trial interposed after a verdict was returned. Such a motion is also addressed to the discretion of the trial judge and will not be reviewed on appeal in the absence of gross abuse. State v. Reddick, 222 N.C. 520, 23 S.E. 2d 909 (1943), and State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972). Defendant has failed to show such abuse and this assignment is likewise overruled.\nNo error.\nJudges Hedrick and Carson concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan, by Associate Attorney C. Diederieh Heidgerd, for the State.",
      "J. Reid Potter for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DELTON HARRIS\nNo. 7426SC388\n(Filed 15 May 1974)\n1. Criminal Law \u00a7 166\u2014 abandonment of exception \u2014 failure to support by reason or argument\nException to the court\u2019s conclusion that in-court identifications were of independent origin is deemed abandoned for failure to be supported by reason or argument where appellant merely restated the question involved and stated that \u201cthe evidence presented does not sustain such a ruling.\u201d Court of Appeals Rule 28.\n2. Robbery \u00a7 4\u2014 armed robbery \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury on the issue of defendant\u2019s guilt of armed robbery of a grocery store owner.\n3. Criminal Law \u00a7 128\u2014 remarks by solicitor \u2014 failure to declare mistrial\nThe trial court did not abuse its discretion in failing to declare a mistrial because of remarks made by the solicitor in his jury argument where no motion for mistrial was made at the time of the remarks and the court gave instructions to the jury on the matter.\n4. Criminal Law \u00a7 132\u2014 motion to set aside verdict \u2014 discretion of court\nA motion to set aside a verdict is addressed to the discretion of the trial judge and the denial of such a motion is not reviewable on appeal in the absence of gross abuse.\nAppeal by defendant from Grist, Judge, 15 October 1973 Schedule \u201cC\u201d Session of Superior Court held in Mecklenburg County.\nDefendant was charged in a bill of indictment, in proper form, with the robbery of Dewitt L. Tutterow with a firearm, to wit, a sawed-off shotgun. Defendant pleaded not guilty, the jury returned a verdict of guilty as charged, and the court entered judgment sentencing defendant to prison for a term of not less than 15 nor more that 18 years, with credit for time spent in custody pending trial. Defendant appealed, assigning error.\nAttorney General Robert Morgan, by Associate Attorney C. Diederieh Heidgerd, for the State.\nJ. Reid Potter for defendant appellant."
  },
  "file_name": "0550-01",
  "first_page_order": 578,
  "last_page_order": 580
}