{ "id": 8554909, "name": "STATE OF NORTH CAROLINA v. JAMES EARL BLOUNT", "name_abbreviation": "State v. Blount", "decision_date": "1969-05-28", "docket_number": "No. 692SC258", "first_page": "561", "last_page": "568", "citations": [ { "type": "official", "cite": "4 N.C. App. 561" } ], "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": "105 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610635, 8610540 ], "opinion_index": 0, "case_paths": [ "/nc/249/0134-02", "/nc/249/0134-01" ] }, { "cite": "102 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619126 ], "opinion_index": 0, "case_paths": [ "/nc/248/0057-01" ] }, { "cite": "73 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627438 ], "opinion_index": 0, "case_paths": [ "/nc/236/0680-01" ] }, { "cite": "164 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "3 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554969 ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0356-01" ] }, { "cite": "132 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573534 ], "opinion_index": 0, "case_paths": [ "/nc/260/0177-01" ] }, { "cite": "80 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627993 ], "opinion_index": 0, "case_paths": [ "/nc/239/0604-01" ] } ], "analysis": { "cardinality": 724, "char_count": 15852, "ocr_confidence": 0.598, "pagerank": { "raw": 3.408114336614157e-07, "percentile": 0.8778253095064615 }, "sha256": "ddf2f95e7d66c8c181b563ee748034c7149b2395eaa8a2fd326457fa36b9aea5", "simhash": "1:97fee6e2fe6934f7", "word_count": 2747 }, "last_updated": "2023-07-14T18:50:38.610889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MallaRD, C.J., and Morris, J., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EARL BLOUNT" ], "opinions": [ { "text": "Campbell, J.\nThe record indicates that the evidence was submitted under Rule 19(d) (2) of the Rules of Practice in the Court of Appeals. However, the evidence in its present form should have been submitted under Rule 19(d)(1), because a reading of the transcript reveals that the evidence has been reduced to narrative form, except where \u201ca question and answer, or a series of them, (have been) set out when the subject of a particular exception.\u201d Rule 19(d) (1). It is further noted that, contrary to Rule 19(d)(2), no appendix was set forth by the defendant in his brief.\nThe defendant\u2019s first assignment of error is that the trial judge abused his discretion in failing to excuse a juror who indicated his acquaintance with Mourning, the State\u2019s second witness. After a plea of not guilty was entered and the jury impaneled, the following occurred during the direct examination of Griffin, the State\u2019s first witness:\n\u201c(Grieein:) Mourning had a pistol too. One of them looked like \u2014\nJueoR: (Speaking from Jury Box) This fellow right here, I know him. When you said William Mourning, I didn\u2019t know him by that name. I have always known him by his nick name.\nThe CouRt: Are you well acquainted with him?\nA Yes, he knows me.\nThe Court: I asked if you know him well.\nA Fairly well. In other words, I say, 'old friends\u2019, actually I see him every once in a while. We get together for a little cha,t, something like that.\nThe Court: Mr. Juror, what is your name, please?\nA James T. Williams.\nThe Court: You have just indicated you recognized the person by the name of Mourning that you did not identify by that name a few moments ago?\nA Yes, sir.\nThe Court: It may be that he will be a witness in the case. I don\u2019t know. His name has been mentioned, of course, by this witness.\nA Right.\nThe Court: I want to ask you if the fact that you know him, the fact you know this man named Mourning, if that would have any bearing on your verdict in this case?\nA Is he related to the other fellows?\nThe Court: I don\u2019t know. I never heard of him before. I don\u2019t know. I am asking, from your knowledge of him if it would cause you to have any feeling against the defendant, or against the State?\nA If there was any way of not serving in this case I really would not want to serve on it because I do know the persons.\nThe Court: Well, that person is not on trial. You understand that, don\u2019t you?\nA I understand that he is not on trial.\nThe Court: He is not on trial at this time. I can tell you that.\nA Oh, well, that is all right then.\nThe Court: In view of that, would your knowledge of him, even if he becomes a witness, cause you to have any feeling against the defendant or against the prosecution, just because of your knowledge of this man named Mourning, that is what I want to know?\nA I don\u2019t think so.\nThe Court: Have you got any doubt about it?\nA I believe I could make a sound judgment on the case.\nThe Court: You say you believe you can, I want to be sure about it?\nA I can.\nMR. WilkiNSOn: I ask Your Honor, in your discretion to excuse this juror.\nThe Court: Well, I deny your request.\u201d\nIn his brief, the defendant argued that it was an abuse of discretion to compel him \u201cto be tried by a juror whose connection with the case had been, concealed\u201d. However, this connection was immediately brought to the attention of the trial court when discovered, and the concealment, if any, was clearly not deliberate, intentional or prejudicial. The defendant further argued that he \u201cwas given no opportunity to inquire into the extent or depth of\u201d this connection. However, the record reveals no attempt by defense counsel to make any inquiry.\nThe question of whether a juror is competent is one for the trial judge to determine in his discretion. G.S. 9-14. \u201c(H) is rulings thereon are not subject to review on appeal, unless accompanied by some imputed error of law.\u201d State v. Spencer, 239 N.C. 604, 80 S.E. 2d 670. In the instant case, there is neither an imputed error of law nor an abuse of discretion in the denial of the defendant\u2019s motion to excuse the juror.\nThis assignment of error is without merit.\nThe defendant\u2019s second assignment of error is that the trial judge erred in denying his motion to strike the following answer of Griffin on direct examination:\n\u201cQ How long have you known him altogether?\nA Well, I been knowing of (the defendant) ever since he was growing up, when he was growing up.\nMOTION to Strike Overruled\u201d\nIn his brief, the defendant argued that this answer was unresponsive. However, the question was proper and the answer was clearly responsive. It was also argued that the answer was highly prejudicial, because it \u201cemphasized the alleged familiarity of the witness with\u201d the defendant when, in fact, Griffin had not seen him for several years. During this time, the defendant \u201chad changed from a boy of seventeen to a man of twenty-two, grown a moustache, and gained sixty pounds\u201d. However, this answer was admissible, and it was for the jury to determine what weight should be given to it. State v. Orr, 260 N.C. 177, 132 S.E. 2d 334; State v. Perry, 3 N.C. App. 356, 164 S.E. 2d 629. No prejudice has been made to appear.\nThis assignment of error is without merit.\nThe defendant\u2019s third, fourth, fifth, sixth and seventh assignments of error all relate to the contention that the trial judge abused his discretion in sustaining the State\u2019s objections to the following questions propounded by defense counsel on the cross-examination of Griffin:\n\u201cQ You tell this Jury you can identify a person after five years, a man wearing a beard, five years later, and a mustache, and identify him from somebody you can not even remember had a mustache or not?\nOBJECTION SuSTAINED\nQ I thought you had testified that is where it was?\nOBJECTION SUSTAINED\nQ Certainly, Mr. Griffin, you know what a beard is? OBJECTION SUSTAINED\nThe Court: Mr. Wilkinson, start off, ask the witness a question. Don\u2019t tell him what he knows or does not know, please.\nMr. Wilkinson: It is cross-examination, Your Honor.\nThe Court: You may examine him but don\u2019t tell him.\nQ Do you tell this Jury, Mr. Griffin, that you can recognize somebody after he is grown by his appearance as a boy?\nObjectioN Sustained\nQ The truth of the matter is, you don\u2019t have any recollection of having seen him at any particular period before then, do you?\nObjection Sustained\u201d\nIt is noted in passing that, contrary to Rule 28, the defendant\u2019s brief does not include references to the pages of the record for all of his assignments of error.\n\u201cOne of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary\u2019s witnesses.\u201d Stansbury, N. C. Evidence 2d, \u00a7 35. However, \u201c(i)t is the duty of the trial court to protect a witness on cross-examination from being unfairly dealt with, and cross-examining counsel should not be permitted to browbeat, bulldoze, or intimidate a witness. . . .\u201d 98 C.J.S., Witnesses, \u00a7 410, p. 211. Therefore, \u201cthe allowing of . . . questions (calling for a repetition of testimony already given) ordinarily rests in the discretion of the trial court, and the court acts properly within its discretion when it refuses to permit further cross-examination, where unduly repetitious. . . .\u201d 98 C.J.S., Witnesses, \u00a7 414, p. 217. \u201cOther questions disallowed are those which are argumentative. . . .\u201d 98 C.J.S., Witnesses, \u00a7 411, p. 211. See In re Will of Kemp, 236 N.C. 680, 73 S.E. 2d 906.\nThe questions supra were clearly repetitious and argumentative, and there was no abuse of discretion by the trial judge in sustaining the State\u2019s objections, particularly in view of the otherwise extensive cross-examination.\nThese assignments of error are without merit.\nThe defendant\u2019s eighth, ninth, tenth and eleventh assignments of error relate to the contention that the trial judge erred in his charge to the jury.\nThe defendant argues that the testimony of the two witnesses for the State was diametrically opposed, since Griffin testified to the involvement of the defendant, Mourning, Mills and Langley, while Mourning testified to the involvement of the defendant, Little, Whitaker and Holliday. The defendant says it was incumbent upon the trial judge to make no \u201celection\u201d between the two versions, but that the trial judge did make an \u201celection\" and hence committed error by the expression of an opinion. A careful review of the charge reveals that the trial judge did not make such an \u201celection\u201d and he expressed no opinion. He gave the contentions of both the State and the defendant and left the determination of guilt or innocence to the jury. If the defendant desired any further instruction as to the contradictory nature of the State\u2019s evidence, a request should have been made. \u201cFailure to charge on a subordinate \u2014 not a substantive \u2014 feature of a trial is not reversible error in the absence of request for such instruction.\u201d State v. Pitt, 248 N.C. 57, 102 S.E. 2d 410. Under the circumstances \u201c(i)t was not inappropriate for the court to leave to counsel for the State and counsel for defendant, respectively, the making of contentions relating to the credibility of the witnesses and the probative value of their testimony.\u201d State v. Jones, 249 N.C. 134, 105 S.E. 2d 513.\nThese assignments of error are without merit.\nThe charge when taken as a whole and in context was not prejudicial to the defendant.\nNo error.\nMallaRD, C.J., and Morris, J., concur.", "type": "majority", "author": "Campbell, J." } ], "attorneys": [ "Attorney General Robert Morgan, Deputy Attorney General Harrison Lewis and Trial Attorney J. Bruce Morton for the State.", "John A. Wilkinson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EARL BLOUNT\nNo. 692SC258\n(Filed 28 May 1969)\n1. Jury \u00a7 6\u2014 competency of jurors \u2014 discretion of trial court\nThe question of whether a juror is competent is one for the trial judge to determine in his discretion, G.S. 9-14, and his rulings thereon are not reviewable on appeal unless accompanied by some imputed error of law.\n2. Jury \u00a7 6\u2014 motion to excuse juror acquainted with State\u2019s witness\nIn this prosecution for armed robbery, the trial judge did not abuse his discretion in the denial of defendant\u2019s motion to excuse a juror who indicated during the trial that he was acquainted with a State\u2019s witness, the juror having stated that his acquaintance with the witness would not affect his verdict in the case.\n8. Criminal Law \u00a7 66; Robbery \u00a7 3\u2014 motion to strike testimony \u2014 credibility\nIn this prosecution for armed robbery, the court did not err in denying defendant\u2019s motion to strike testimony by the prosecuting witness to the effect that he had known defendant ever since he was growing up when, in fact, the witness had not seen defendant for several years during which defendant had changed in appearance, it being for the jury to determine the weight to be given to such testimony.\n4. Criminal Law \u00a7 88; Witnesses \u00a7 8\u2014 argumentative and repetitious cross-examination\nIn this prosecution for armed robbery, the court did not abuse its discretion in sustaining the State\u2019s objections to questions asked the prosecuting witness on cross-examination which were clearly repetitious and argumentative, particularly in view of the otherwise extensive cross-examination.\n5. Robbery \u00a7 5\u2014 instructions \u2014 expression of opinion \u2014 failure to instruct on subordinate feature of case\nIn this prosecution for armed robbery in which certain testimony of one State\u2019s witness conflicted with that of another State\u2019s witness, the trial court expressed no opinion in the charge as to which version the jury should accept, and failure of the court to give specific instructions as to the contradictory nature of the State\u2019s evidence is not error where no request for such instructions was made.\nAppeal from Fountain, /., January 1969 Criminal Session, Beau-FORT County Superior Court.\nJames Earl Blount (defendant) was charged in a proper bill of indictment with the felony of armed robbery. He entered a plea of not guilty and a jury was impaneled.\nJimmy Griffin (Griffin), the State\u2019s first witness, testified that he was sixty years of age; on Sunday, 11 February 1968, he was operating a combination filling station and grocery store located about six miles from the Town of Washington, Beaufort County; at approximately 1:15 p.m., he was alone in his store; a 1959 or 1960 model Pontiac automobile drove up and parked in front of his store; one of the four occupants, Willie Robert Mills (Mills), got out of the automobile and entered the store; Mills had a pistol, which he pointed at Griffin\u2019s stomach, and he pushed Griffin against a freezer; two other occupants, William Charles Mourning (Mourning) and the defendant, then entered the store; each had a pistol; the defendant helped tie Griffin\u2019s arms behind his back with his belt; the fourth occupant, Rudolph Langley (Langley) entered the store; Langley, who did not have a guri, was immediately recognized by Griffin; Mills and the defendant shoved Griffin down behind a soft drink box; a rifle was taken from the store, and money was taken from the cash register and Griffin\u2019s billfold; the four stayed in the store 25 to' 30 minutes before leaving; Griffin freed himself in time to see the automobile departing in the direction of the Town of Washington; Griffin had not seen the defendant, who had previously lived in the community, for three to five years prior to 11 February 1968.\nMourning, the State\u2019s second witness, testified that he was 22 years old; on 11 February 1968 he was in New York and he did not participate in any robbery; the defendant talked with him on Monday, 12 February 1968, in Brooklyn, New York; the defendant said that he had gone to North Carolina with Mills, who was driving a 1959 Pontiac automobile; the defendant said that he had gone to Griffin\u2019s store and had committed the crime in question; the defendant had a pistol at that time; James Little, James Whitaker and Jesse Holliday had accompanied defendant to Griffin\u2019s store.\nThe defendant took the stand in his own behalf and testified that he had traveled from his home in Patterson, New Jersey, to North Carolina with Mills and several other persons; he arrived at his mother\u2019s home in the Town of Washington on Saturday morning, 10 February 1968; on Sunday, 11 February 1968, he got out of bed between 8:30 and 9:00 a.m.; he did not leave the house until approximately 4:00 p.m., at which time he went to visit his grandmother a few blocks away; he did not see Mills on Sunday until 5:30 or 6:00 p.m. when it was time to return to New Jersey; he did not know Griffin; the first time he had ever seen Griffin was the day of the trial; he was 23 years old, six feet eleven inches in height, and weighed 185 pounds; he had recently grown a mustache; if Griffin had seen him three to five years prior to the robbery, he had seen a teenage boy who weighed 130 to 135 pounds and who did not have a mustache. The defendant further testified that he had not committed the robbery, and he had not spoken with Mourning after his alleged participation in the crime.\nRussell Graddy testified that he was the defendant\u2019s employer and that the defendant had a very good reputation in his community.\nCarrie Blount, the defendant\u2019s mother, corroborated her son\u2019s testimony. However, she testified that he had visited Mills on Sunday morning, but that he stayed away only about 10 or 15 minutes.\nMills took the witness stand and corroborated the defendant\u2019s testimony. Langley then took the witness stand and denied his participation in the robbery or his presence in North Carolina on 11 February 1968.\nMartha Stokes, the defendant\u2019s grandmother and the last defense witness, testified that he had visited her Saturday evening and that she did not see him Sunday.\nFrom a verdict of guilty as charged and a sentence of not less than twelve years nor more than fifteen years, the defendant excepted and appealed to this Court.\nAttorney General Robert Morgan, Deputy Attorney General Harrison Lewis and Trial Attorney J. Bruce Morton for the State.\nJohn A. Wilkinson for defendant appellant." }, "file_name": "0561-01", "first_page_order": 581, "last_page_order": 588 }