{
  "id": 8555061,
  "name": "STATE OF NORTH CAROLINA v. JAMES WILLIS SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1975-11-19",
  "docket_number": "No. 7514SC618",
  "first_page": "568",
  "last_page": "571",
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    "name_abbreviation": "N.C. Ct. App.",
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      "cite": "286 N.C. 202",
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      "year": 1978,
      "pin_cites": [
        {
          "page": "794"
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    {
      "cite": "284 N.C. 259",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1978,
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        {
          "page": "275"
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  "last_updated": "2023-07-14T22:44:36.927205+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Martin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES WILLIS SMITH"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nThirty-four assignments of error are listed in the record on appeal. Only two questions are presented and discussed in appellant\u2019s brief. The questions raised by assignments of error which are not presented and discussed in appellant\u2019s brief are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals. (For cases in which notice of appeal is given on and after 1 July 1975, see Rule 28 of the North Carolina Rules of Appellate Procedure.)\nThe first question presented and discussed in appellant\u2019s brief relates to denial of his motion for mistrial. Following a lengthy cross-examination of the State\u2019s witness, the SBI chemist Lytle, by counsel for defendant, the district attorney asked on redirect examination:\n\u201cMr. Lytle, have you ever been rabbit hunting before, sir ?\u201d Defendant\u2019s counsel objected, whereupon the district attorney withdrew the question. Defendant\u2019s counsel then moved for a mistrial, contending that by asking the question, the district attorney was insinuating that defendant\u2019s counsel, in his cross-examination and in his representation of defendant, was \u201cgrasping at straws\u201d and was attempting to focus the jury\u2019s attention on irrelevant and unimportant facts. The court denied the motion, and in this we find no error. Assuming the purport of the question was as appellant contends, the mere asking of the question was clearly insufficient grounds for a mistrial. Although more appropriately to be included in his argument to the jury, the contention that the defense was grasping at straws was not an improper one for the district attorney to make. \u201cMoreover, the allowance or refusal of a motion for a mistrial in a criminal case less than capital rests largely in the discretion of the trial court.\u201d State v. Foster, 284 N.C. 259, 275, 200 S.E. 2d 782, 794 (1978). Clearly no abuse of discretion has been here shown.\nThe second question presented and discussed in appellant\u2019s brief relates to the denial of his motion in arrest of judgment in Case No. 74CR4546 in which he was charged with unlawful possession of heroin. Appellant\u2019s contention in this connection has merit. One may not possess a substance with intent to sell or deliver it without having possession of it. Thus, possession is an element of possession with intent to sell or deliver. A defendant\u2019s unlawful possession of heroin is, of necessity, an offense included within the charge that he did unlawfully possess with intent to sell or deliver, where, as here, both are in fact one transaction. State v. Aiken, 286 N.C. 202, 209 S.E. 2d 763 (1974).\nThe result is:\nIn Case No. 74CR4545, in which defendant was found guilty of felonious possession of heroin with intent to sell, we find\nNo error.\nIn Case No. 74CR4546, in which defendant was charged was felonious possession of heroin,\nJudgment arrested.\nJudges Morris and Martin concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Associate Attorney Joan H. Byers for the State.",
      "Clayton, Myrick, McCain & Oettinger by Jerry B. Clayton, Robert W. Myrick, Kenneth B. Oettinger, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES WILLIS SMITH\nNo. 7514SC618\n(Filed 19 November 1975)\n1. Criminal Law \u00a7 128\u2014 examination of witness as to \u201crabbit hunting\u201d experience \u2014 no grounds for mistrial\nWhere defendant\u2019s counsel conducted a lengthy cross-examination of a State\u2019s witness, the district attorney\u2019s question on redirect examination as to whether the witness had ever been \u201crabbit hunting\u201d was not grounds for a mistrial.\n2. Narcotics \u00a7 1; Criminal Law \u00a7 127\u2014 possession and possession with intent to sell heroin \u2014 one offense \u2014 judgment arrested\nA defendant\u2019s unlawful possession of heroin is, of necessity, an offense included within the charge that he did unlawfully possess with intent to sell or deliver, where, as in this case, both are in fact one transaction; therefore, judgment is arrested in the case charging defendant with felonious possession of heroin.\nAppeal by defendant from Canaday, Judge. Judgments entered 19 February 1975 in Superior Court, Durham County. Heard in the Court of Appeals 12 November 1975.\nBy separate indictments, proper in form, defendant was charged with (1) felonious possession of heroin with intent to sell (Case No. 74CR4545) and (2) with felonious possession of heroin (Case No. 74CR4546). Both offenses allegedly occurred on 2 March 1974. Without objection, the two cases were consolidated for trial, and defendant pled not guilty to both charges.\nThe State\u2019s evidence showed that on 2 March 1974 Durham City police officers, after obtaining a search warrant authorizing a search of an apartment at 2805 Ashe Street in Durham and of defendant\u2019s person, went to the apartment where they found defendant. Upon searching defendant, one of the officers found in the right front pocket of a sweater, which defendant was then wearing, twenty-four aluminum foil packages and one larger foil packet. These were delivered by the officer who found them to Leslie Lytle, a chemist employed by the SBI Laboratory in Raleigh. Lytle testified that he performed chemical and other laboratory tests on the contents of the packets and found they contained heroin.\nDefendant did not testify. He presented the testimony of Mable Davis Wright, who testified she was in the apartment when the search was made, that when the police arrived defendant was asleep on the sofa, and that the officers picked up the sweater, which was on the sofa next to defendant.\nThe jury found defendant guilty in both cases. In Case No. 74CR4545, in which defendant was charged with felonious possession of heroin with intent to sell, judgment was entered sentencing defendant to prison for not less than eight nor more than ten years. In Case No. 74CR4546, in which defendant was charged with felonious possession of heroin, judgment was en-. tered sentencing defendant to prison for not less than three nor more than five years, this sentence to begin at the expiration of the sentence imposed in Case No. 74CR4545. Defendant appealed.\nAttorney General Edmisten by Associate Attorney Joan H. Byers for the State.\nClayton, Myrick, McCain & Oettinger by Jerry B. Clayton, Robert W. Myrick, Kenneth B. Oettinger, for defendant appellant."
  },
  "file_name": "0568-01",
  "first_page_order": 596,
  "last_page_order": 599
}