{ "id": 8553367, "name": "STATE OF NORTH CAROLINA v. DONALD WESLEY HOYLE", "name_abbreviation": "State v. Hoyle", "decision_date": "1968-11-20", "docket_number": "No. 6825SC330", "first_page": "109", "last_page": "114", "citations": [ { "type": "official", "cite": "3 N.C. App. 109" } ], "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": "161 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "1 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552909 ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0365-01" ] }, { "cite": "157 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566320 ], "opinion_index": 0, "case_paths": [ "/nc/271/0646-01" ] }, { "cite": "145 S.E. 2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559633 ], "opinion_index": 0, "case_paths": [ "/nc/266/0077-01" ] }, { "cite": "46 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627945 ], "opinion_index": 0, "case_paths": [ "/nc/228/0651-01" ] }, { "cite": "113 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619401 ], "opinion_index": 0, "case_paths": [ "/nc/252/0133-01" ] }, { "cite": "134 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572663 ], "opinion_index": 0, "case_paths": [ "/nc/261/0181-01" ] }, { "cite": "57 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630474 ], "opinion_index": 0, "case_paths": [ "/nc/231/0467-01" ] } ], "analysis": { "cardinality": 549, "char_count": 11178, "ocr_confidence": 0.55, "pagerank": { "raw": 2.279034880960449e-07, "percentile": 0.7848824390920088 }, "sha256": "ee40254a76176d9a4c304ec43a5fd37bc5d2d9ce00f315d5b1aa81c010b75d45", "simhash": "1:83f4f54683fec832", "word_count": 1968 }, "last_updated": "2023-07-14T16:33:22.618564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and Morris, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD WESLEY HOYLE" ], "opinions": [ { "text": "MALLARD, C.J.\nThe defendant asserts that the following four questions are raised on this appeal:\n\u201c1. Did the questioning of witnesses by the Court constitute an expression of opinion as to the weight and sufficiency of evidence?\n2. Did the Court\u2019s recapitulation of the defendant\u2019s evidence constitute an expression of opinion by the Court?\n3. Did the Court err in its charge to the jury on the elements of the plea of self-defense?\n4. Did the Solicitor prejudice the defendant by making a remark in the presence of the jury that the defendant had not testified in his own behalf?\u201d\nThe defendant contends that the questioning of witnesses by the judge violated his duty under G.S. 1-180, not to express an opinion on the evidence during the course of a trial or in his charge to the jury. In the case of State v. Perry, 231 N.C. 467, 57 S.E. 2d 774, we find the following language:\n\u201cIt is well settled in this jurisdiction that it is improper for a trial judge to ask questions for the purpose of impeaching a witness. . . .\nOn the other hand, there are times in the course of a trial, when it becomes the duty of the judge to propound competent questions in order to obtain a proper understanding and clarification of the testimony of the witness or to bring out some fact that has been overlooked. But the trial judge should not by word or mannerism convey the impression to the jury that he is giving it the benefit of his opinion on the facts. . . .\nThe comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\u201d See also State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334; State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281; and 2 Strong, N. C. Index 2d, Criminal Law, \u00a7 99.\nLooking at the record as a whole and considering the questions propounded by the judge, in the light of all the attendant facts and circumstances disclosed by this record, we are of the opinion that the questions propounded to the witnesses by the judge were for the purpose of clarification and were not expressions of opinion and therefore not prejudicial to defendant.\nWhile defendant\u2019s counsel was cross-examining one of the State\u2019s witnesses, the following occurred:\n\"Q You were watching it. Did he just kind of walk up oh the bank as I am walking?\nA No, he jumped.\nQ Quickly?\nA Quickly?\nQ Yes.\nA Quickly?\nQ Yes.\nA Did he \u2014 ?\nThe Court: Can you jump slow?\u201d\nWhile we do not approve of such a question being propounded by the court to the lawyer, or to a witness, under the circumstances disclosed by the record, we are of the opinion that such was not prejudicial error.\nDefendant contends that the court committed error in recapitulating the defendant\u2019s testimony in stating that the defendant and the deceased \u201cwent together\u201d instead of using some other words to convey how the defendant and the deceased engaged in a. fight in which the defendant contends he was cut by the deceased with a pocket knife. This contention is without merit. Some of the witnesses used the term they \u201cwent together.\u201d The defendant used the words, \u201cI walked out there, walked up to him,\u201d and again, \u201cI walked up to him and I said, John Henry, what is wrong with you? That is when he come off on me and cut me with.a knife.\u201d If the defendant considered the words \u201cwent together\u201d to be a misstatement of the evidence, he did not call this to the attention of the court at the time.\n\u201cThe Court, in reviewing the evidence offered by the respective parties, is not required to give the jury a verbatim recital of the testimony. It must of necessity condense and summarize the essential features thereof in short-hand fashion. All that is required is a summation sufficiently comprehensive to present every substantial feature of the case. When its statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction. ... As the Court\u2019s attention was not called thereto and exception not entered in apt time, they are not now tenable.\u201d Steelman v. Benfield; Parsons v. Benfield, 228 N.C. 651, 46 S.E. 2d 829; see also O\u2019Berry v. Perry, 266 N.C. 77, 145 S.E. 2d 321.\nThe defendant contends but cites no authority other than G.S. 1-180 that the court committed error in failing to explain what was meant by the words \u201cwas the defendant at a place where he had a right to be,\u201d contending that the court should have charged as to whether or not the defendant Hoyle had a right to be at the place where the shooting occurred. This contention is without merit. Also, this assignment of error is improper in that it is based on an exception that does not appear of record. The evidence tends to show that the fatal shooting took place behind a place of business after an argument, between the parties, had occurred on the inside. Both the deceased and defendant were customers at this place of business. There was no request for special instructions on this aspect \u00a1of the law. We are of the opinion and so decide that the trial judge 'correctly and adequately charged the jury on self-defense.\nThe defendant\u2019s final assignment of error relates to a remark made by the solicitor that the defendant had not testified in his own behalf.\nA defendant\u2019s witness was on the witness stand and was being examined by defendant\u2019s attorney when the following occurred:\n\"Q What was John Henry McDaniels\u2019 general reputation there in the community where he lived?\nSol. Childs: Objection.\nThe Couet: Overruled.\nA He would cut you. I had heard \u2014\nSol. Childs: Objection; move it be striken (sic).\nThe Couet: Overruled.\nSol. Childs: If the Court, please, you may overrule.\nHe is trying to get something through the back door. It isn\u2019t competent at this time.\nThe Couet: He is entitled to show his reputation as being a dangerous and violent man.\nSol. Childs: He hasn\u2019t put the defendant up. He can\u2019t get it in at this particular point as competent evidence.\nThe Couet: Overruled.\u201d\nThe remark made by the solicitor related to the competency of \u25a0evidence that was being sought to be introduced and was not calculated to \u201cmislead and prejudice the jury,\u201d and we are of the opinion that it did not mislead or prejudice the jury so as to require a new trial. State v. Miller, 271 N.C. 646, 157 S.E. 2d 335; State v. Bentley, 1 N.C. App. 365, 161 S.E. 2d 650; 2 Strong, N. C. Index 2d, Criminal Law, \u00a7 102.\nWe therefore hold that the remark of the solicitor, under the circumstances, was not sufficiently prejudicial to warrant a new trial.\nIn the trial, we find\nNo error.\nCampbell and Morris, JJ., concur.", "type": "majority", "author": "MALLARD, C.J." } ], "attorneys": [ "Attorney General T. W. Bruton and Deputy Attorney General Harry W. McGalliard for the State.", "Byrd, Byrd & Ervin by John W. Ervin, Jr., for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD WESLEY HOYLE\nNo. 6825SC330\n(Filed 20 November 1968)\n1. Criminal Law \u00a7 99\u2014 questions propounded by trial court\nIn this homicide prosecution, questions propounded to the witnesses by the trial judge were for the purpose of clarification and were not expressions of opinion by the court.\n2. Criminal Law \u00a7\u00a7 99, 170\u2014 question propounded by trial court\nIn this homicide prosecution, trial judge\u2019s question \u201cCan you jump slow?\u201d after defense counsel asked a State\u2019s witness on cross-examination whether another had jumped \u201cquickly,\u201d while disapproved, is held, not to constitute prejudicial error.\n3. Criminal Law \u00a7\u00a7 113, 163\u2014 misstatement of defendant\u2019s evidence\nIn a homicide prosecution, the court did not err in its recapitulation of defendant\u2019s testimony by stating that defendant and the deceased \u201cwent together\u201d instead of using some other words to convey how the defendant and the deceased engaged in a fight in which defendant contends he was cut by deceased with a pocket knife, and defendant\u2019s contention that the term \u201cwent together\u201d is a misstatement of the evidence is not reviewable on appeal where defendant did not call this to the court\u2019s attention at the trial.\n4. Homicide \u00a7 28\u2014 instruction on self-defense\nIn a homicide prosecution, the court did not err in its instructions relating to self-defense in failing to explain the meaning of the words \u201cwas the defendant at a place where he had a right to be.\u201d\n5. Criminal Law \u00a7\u00a7 102, 170\u2014 remarks of solicitor \u2014 failure of defendant to testify\nIn a homicide prosecution, a remark by the solicitor that \u201cHe hasn\u2019t put the defendant up\u201d in objecting to defense counsel\u2019s examination of a witness as to decedent\u2019s reputation related to the competency of the evidence sought to be introduced and did not mislead or prejudice the jury so as to require a new trial.\nAppeal by defendant from Falls, J., 27 May 1968 Ordinary Mixed Session of BuRKE Superior Court.\nThe defendant was charged in a bill of indictment with first degree murder. Upon the call of the case for trial, the solicitor for the State announced, in substance, that he would not ask for a verdict of guilty of murder in the first degree but that he would seek a verdict of guilty of murder in the second degree or manslaughter or such verdict as the law and the evidence in the case might warrant. The defendant pleaded not guilty and was tried by a jury. The evidence presented at the trial tended to show that the defendant and John Henry McDaniels (hereinafter referred to as deceased) were at the Do-Drop-In, \u201ca piccolo joint,\u201d about midnight on 17 December 1966. The deceased had been drinking and was being abusive to those around him. Deceased bad a knife which he began to wave about after the defendant had slapped him. The deceased\u2019s brother-in-law, who was the proprietor of the Do-Drop-In, asked him to leave before any trouble started. The deceased went out the back door toward his brother-in-law\u2019s house at about the same time the defendant went out the front door. On the way to the house, the deceased was met by his sister who urged him to continue to the house. He refused and followed her back toward the store. The defendant came around to the back of the store with a gun in his hand and told the deceased to drop the pocket knife he had in his hand. The first shot was fired by the defendant while the deceased was standing there with his knife open. After the first shot was fired at the deceased by the defendant, the deceased advanced on the defendant with the knife in his hand. They collided and fell into a ditch, with the defendant landing on top of the deceased. Another shot was fired while they were in the ditch, and then four more shots were fired by the defendant after he got out of the ditch. When the defendant got up, he was bleeding from a cut on his left temple. The defendant went back around to the front of the building and left the scene with a friend. The deceased was taken to the hospital where he died from a bullet wound. The case was submitted to the jury who returned a verdict of guilty of manslaughter. Sentence was imposed and the defendant appealed to the Court of Appeals.\nAttorney General T. W. Bruton and Deputy Attorney General Harry W. McGalliard for the State.\nByrd, Byrd & Ervin by John W. Ervin, Jr., for the defendant appellant." }, "file_name": "0109-01", "first_page_order": 129, "last_page_order": 134 }