{ "id": 8521450, "name": "STATE OF NORTH CAROLINA v. W.M. BAILEY", "name_abbreviation": "State v. Bailey", "decision_date": "1980-11-04", "docket_number": "No. 807SC441", "first_page": "377", "last_page": "384", "citations": [ { "type": "official", "cite": "49 N.C. App. 377" } ], "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": "211 S.E. 2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566410, 8566515, 8566548, 8566486, 8566458 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0340-01", "/nc/286/0340-04", "/nc/286/0340-05", "/nc/286/0340-03", "/nc/286/0340-02" ] }, { "cite": "208 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "23 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548899 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/23/0203-01" ] }, { "cite": "96 S. Ct. 3203", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "202 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564781 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0670-01" ] }, { "cite": "215 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564202 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0541-01" ] }, { "cite": "92 S. Ct. 2873", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "408 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782720, 1782785, 1782912, 1782723, 1782762, 1782831, 1782832, 1782961, 1782833, 1782865, 1782868, 1782933, 1782941, 1782835, 1782936, 1782777, 1782813 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0939-13", "/us/408/0939-10", "/us/408/0939-06", "/us/408/0939-16", "/us/408/0939-01", "/us/408/0939-05", "/us/408/0939-02", "/us/408/0939-08", "/us/408/0939-07", "/us/408/0939-17", "/us/408/0939-14", "/us/408/0939-15", "/us/408/0939-03", "/us/408/0939-12", "/us/408/0939-04", "/us/408/0939-11", "/us/408/0939-09" ] }, { "cite": "181 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565554 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0018-01" ] }, { "cite": "225 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 745", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557200 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0745-01" ] }, { "cite": "262 S.E. 2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547728 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0113-01" ] }, { "cite": "221 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "362" } ], "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "249 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "296 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564508 ], "year": 1978, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0047-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "241 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572384 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0210-01" ] }, { "cite": "262 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548371 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0276-01" ] }, { "cite": "95 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "245 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610972 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/245/0344-01" ] }, { "cite": "252 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0623-01" ] }, { "cite": "201 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550322 ], "year": 1973, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0167-01" ] }, { "cite": "32 S.E. 2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "224 N.C. 846", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616237 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0846-01" ] }, { "cite": "182 S.E. 2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547777 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0128-01" ] }, { "cite": "91 S. Ct. 2199", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "402 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11781535, 11781394, 11781462, 11781595, 11781343 ], "year": 1971, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/402/1006-04", "/us/402/1006-02", "/us/402/1006-03", "/us/402/1006-05", "/us/402/1006-01" ] }, { "cite": "178 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "405", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "277 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566982 ], "year": 1971, "pin_cites": [ { "page": "612", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0602-01" ] }, { "cite": "237 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564832, 8564802, 8564871, 8564904, 8564779 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0363-03", "/nc/293/0363-02", "/nc/293/0363-04", "/nc/293/0363-05", "/nc/293/0363-01" ] }, { "cite": "236 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551820 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0647-01" ] }, { "cite": "191 S.E. 2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562829 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0107-01" ] } ], "analysis": { "cardinality": 832, "char_count": 17080, "ocr_confidence": 0.725, "pagerank": { "raw": 3.8866751381563537e-07, "percentile": 0.9011318806617683 }, "sha256": "0d8e34a333b0bdb801cd9d49190802255bf6b75cadafb01d5d52308fe6ecc460", "simhash": "1:e719937e6c3f147c", "word_count": 2933 }, "last_updated": "2023-07-14T18:45:37.060516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Morris and Judge Wells concur." ], "parties": [ "STATE OF NORTH CAROLINA v. W.M. BAILEY" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendant brings several assignments of error which evolve into four basic issues. We shall consider these issues in the same order in which they developed at trial.\nThe first question concerns a variance between the date of the offense charged in the bill of indictment, 17 April 1979, and the date of the events proven at trial, 17 February 1979. J.R. Bailey was arrested for the shooting on 18 February 1979. The indictment charged him with shooting Perry on 17 February 1979. Defendant is the father of J.R. Bailey. On 22 May 1979, defendant was arrested pursuant to a warrant which charged him with shooting Perry on 17 April 1979. The indictment charged defendant for an incident on 17 April 1979. Only Deputy Sheriff Reams was able to give an explanation for the variance. He testified that the warrant incorrectly referred to the date of 17 April due to a clerical mistake by the magistrate.\nThe trial court properly denied defendant\u2019s motion for a directed verdict at the close of the State\u2019s evidence because of the variance in the dates. A variance between allegations in the indictment and the evidence in a criminal trial is ordinarily not fatal where the statute of limitations is not involved. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972); State v. Locklear, 33 N.C. App. 647, 236 S.E. 2d 376, review denied, 293 N.C. 363, 237 S.E. 2d 851 (1977). In addition, G.S. 15-155 provides that no judgment upon any indictment shall be reversed \u201cfor stating the time imperfectly.\u201d The trial court found that the variance was caused by a clerical error in the indictment and concluded that the statute of limitations was not involved. Nevertheless, defendant now contends that he was unfairly surprised and unable to prepare for trial. He also argues that he was erroneously charged in the disjunctive or alternative because the State, by charging J.R. Bailey with shooting Perry on 17 February 1979, was saying that he, W.M. Bailey, did not shoot Perry on that date, especially since he was charged with shooting Perry on 17 April 1979. We are not persuaded by this reasoning.\nIn State v. Swaney, the Court held that \u201c[t]he indictment should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him.\u201d 277 N.C. 602, 612, 178 S.E. 2d 399, 405, appeal dismissed, 402 U.S. 1006, 91 S. Ct. 2199 (1971) (emphasis added). We fail to see how defendant could have been uncertain or surprised as to the circumstances relied on by the State to charge him. In his own testimony, defendant admitted he was present during the 17 February shootings. All of the evidence offered by the State and the defense concerned a shooting on 17 February. Deputy Sheriff Reams testified that during his investigation of the matter, he had never been told by any of the parties involved about an incident in April. Perry only testified about being shot on 17 February. Defense counsel asked several State witnesses whether they knew why defendant had been charged in the warrant and indictment for a shooting on 17 April 1979. Each responded that he only knew about a shooting on 17 February. Defense counsel\u2019s repeated questioning in this regard clearly indicates that he was aware of the clerical error before trial. We hold that the variance was not fatal in this case, and defendant was not prejudiced in his preparation of an adequate defense. State v. Locklear, 33 N.C. App. 647, 236 S.E. 2d 376, review denied, 293 N.C. 363, 237 S.E. 2d 851 (1977); State v. Lemmond, 12 N.C. App. 128, 182 S.E. 2d 636 (1971).\nThe second question is whether it was proper for the State to introduce evidence of prior altercations between the defendants and Perry. Defense counsel repeatedly objected to the admission of such evidence. Nevertheless, Perry was permitted to testify that J.R. Bailey came to his house and threatened to kill him for going with his sister in November 1978. He also said that the codefendant was following him on the evening of 15 December 1978. They both got out of their vehicles at a crossroads where Perry told him \u201cyou got to cut this mess out. I am not bothering you, your family, your sister, nobody .... I don\u2019t want you following me.\u201d According to Perry, the codefendant cursed him and began beating on him with his fists. Perry further stated:\nWe were still fighting when W.M. Bailey came up ... . When W.M. Bailey came up on this occasion, I said, \u201cPeter, you have got to get Johnny Ray to cut this stuff out, just quit this stuff.\u201d Peter did not say anything but walked up to me with a pocket knife in his hand, and hit me where it busted the skin. It almost knocked me out and I had to have stitches. I knew they were beating me, but I could not feel it. Johnny was holding me and W.M. Bailey was doing the kicking.\nPerry also testified that J.R. Bailey called him at home on 1 January 1979 and said \u201che was going to mess me up.\u201d Perry said that on the same day, Larry Bailey came to his house, and the following occurred:\nWhile Larry was talking, I was looking out at the truck and saw W.M. Bailey get out of the truck door on the passenger side with a gun. I saw him walk around to the back of the truck and could see by the taillights that he had a gun. W.M. Bailey is the same man as the Defendant and is also known as Peter Bailey. I cannot tell you what kind of gun he had in his hand. It could have been a rifle or a shotgun, because it had a long barrel. Larry Bailey told Peter Bailey, \u201cPeter, get ... back in that truck.\u201d Peter did not get back into the truck, so Larry went around the truck and put him back into the truck.\nThree other witnesses, Perry\u2019s wife and brother and the sheriff, gave testimony tending to corroborate Perry\u2019s testimony about encounters with defendants.\nDefendant argues that testimony about those events constituted evidence of collateral matters intended to discredit and impeach him. Defendant relies solely on State v. Godwin, 224 N.C. 846, 32 S.E. 2d 609 (1945), in which the defendant was tried for assault with a deadly weapon with intent to kill, and a witness was permitted to testify about defendant\u2019s use of \u201cvile and profane language\u201d on unrelated occasions. Godwin can be distinguished from the instant case because the testimony about prior incidents between defendant and Perry was admissible \u201cwithin the rule that proof of the commission of other like offenses may be admitted to show the scienter, intent and motive when the crimes are so connected or associated that the evidence will throw light on the question under consideration.\u201d 224 N.C. at 848, 32 S.E. 2d at 610. See 1 Stansbury, N.C. Evidence \u00a7 92 (Brandis rev. 1973).\nDefendant was charged with a violation of G.S. 14-32(a). The State attempted to prove the essential element of intent to kill. The testimony that defendant participated in the beating of Perry in December and went to his home in January with a shotgun was relevant to prove his intent to kill Perry on 17 February 1979. In State v. Benthall, a prosecution for assault with a deadly weapon, the prosecutrix was permitted to testify that defendant had shot her on four previous occasions. This Court upheld the admission of the testimony because \u201c[i]t was relevant to show that defendant shot the prosecutrix intentionally rather than accidentally.\u201d 20 N.C. App. 167, 168, 201 S.E. 2d 34, 35 (1973). Defendant, however, additionally contends that the trial court erred in failing to instruct the jury, even absent a special request, that evidence of J.R. Bailey\u2019s separate confrontations with Perry should not be considered as against him. We do not agree. The codefendant\u2019s encounters with the prosecuting witness tended to show the general ill will existing between their families and defendant\u2019s motive for the assault. J.R. Bailey was angry with Perry, a married man, for going with his younger sister. Apparently, defendant, the father of the girl, was also angry with Perry, and he testified that it made him mad. The motive for a crime may be shown even though it is not a necessary element of the offense charged. State v. Ruof, 296 N.C. 623, 252 S.E. 2d 720 (1979); State v. Adams, 245 N.C. 344, 95 S.E. 2d 902 (1957). We, therefore, overrule all of defendant\u2019s exceptions to the evidence of prior altercations.\nThe third issue is whether the solicitor\u2019s cross-examination of defendant was so prejudicial as to require a new trial. The pertinent portions are:\nQ. And you say you were convicted of three speeding tickets and bootlegging and you have paid a fine in every case?\nA. Yes, sir. I have never fought none of them in court.\nQ. Do what?\nA. I have never fought one of them in court.\nQ. Because you always paid your way out of it, didn\u2019t you?\nMr. Valentine: Objection to the reference, \u201cpaid his way out of it.\u201d\nA. I just didn\u2019t figure it was worth going to court against.\nMr. Valentine: I think that it is an unseemly thing for the District Attorney to ...\nOVERRULED\nQ. You figure you can buy your way out of anything, don\u2019t you, Mr. Bailey?\nOBJECTION\nSUSTAINED\nMr. Valentine: I believe I want to be heard out of the presence of the Jury on that.\nIt was, of course, proper to cross-examine defendant about his prior criminal convictions. 1 Stansbury, N.C. Evidence \u00a7 112 (Brandis rev. 1973). The dispute centers on the question to defendant \u201cYou figure you can buy your way out of anything, don\u2019t you, Mr. Bailey?\u201d Defendant argues that even though his objection to this question was sustained, he was prejudiced by the very nature of the question itself and the failure of the judge to instruct the jury to disregard it.\nA cardinal rule of appellate review is that the scope of cross-examination is firmly lodged in the trial judge\u2019s discretion, and his rulings thereon will not be disturbed unless the verdict was improperly influenced. State v. Parker, 45 N.C. App. 276, 262 S.E. 2d 686 (1980). We disapprove of the solicitor\u2019s question and hold that the trial judge correctly sustained defendant\u2019s objection thereto. The question did not, however, have the degree of inflammatory impact sufficient to have seriously affected the outcome at trial. See State v. Locklear, 294 N.C. 210, 241 S.E. 2d 65 (1978) [solicitor asked defense witness \u201cyou are lying through your teeth and you know you are playing with a perjury count; don\u2019t you?\u201d]; and State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975). In addition, since the impropriety was not gross, the judge did not abuse his discretion in failing to caution the jury to disregard it on his own motion.\nThe conduct of a trial and the prevention of unfair tactics by all connected with the trial must be left in a large measure to the discretion of the trial judge, and it is the duty of the trial judge to intervene when remarks of counsel are not warranted by the evidence and are calculated to prejudice or mislead the jury.\nState v. Holmes, 296 N.C. 47, 50, 249 S.E. 2d 380, 382 (1978). Defendant was at liberty to request a cautionary instruction after his objection was sustained, and having failed to do so, he has not shown any prejudicial error in the cross-examination.\nThe final issue is whether the court erred in overruling defendant\u2019s objection to the solicitor\u2019s argument that \u201cthe defendants were lawless people, had no regard for the law books or the laws that have been established; and that in the course of his argument he picked up a law book and slammed it down on the desk.\u201d Only this portion of the argument appears in the record for our review. The latitude permitted injury argument is controlled by the judge\u2019s discretion. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). Ordinarily, his discretion is not reviewable \u201cunless the impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.\u201d State v. Taylor, 289 N.C. 223, 227, 221 S.E. 2d 359, 362 (1976). A new trial is awarded only in cases of extreme abuse in the argument. State v. Davis, 45 N.C. App. 113, 262 S.E. 2d 329 (1980) [reference to defendant as a \u201cmean S.Q.B.\u201d]; State v. Swink, 29 N.C. App. 745, 225 S.E. 2d 646 (1976) [reference to defendant as a \u201cprofessional criminal\u201d]. The reference to \u201clawless people\u201d here, however, amounts to little more than an uncomplimentary characterization which was amply supported by the State\u2019s evidence that defendant shot Perry, inflicting serious bodily injury, on 17 February 1979. State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873 (1972); State v. Wortham, 287 N.C. 541, 215 S.E. 2d 131 (1975). We, therefore, decline to grant a new trial on this ground. State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203 (1976); State v. Mink, 23 N.C. App. 203, 208 S.E. 2d 522, cert. denied, 286 N.C. 340, 211 S.E. 2d 215 (1974).\nWe have carefully reviewed all of defendant\u2019s assignments of error and find\nNo error.\nChief Judge Morris and Judge Wells concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Robert L. Hillman, for the State.", "Valentine, Adams and Lamar, by I.T. Valentine, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. W.M. BAILEY\nNo. 807SC441\n(Filed 4 November 1980)\n1. Assault and Battery \u00a7 14.3; Indictment and Warrant \u00a7 17.2- felonious assault - variance in dates between indictment and evidence not fatal\nThere was no fatal variance between an indictment charging that the date of a felonious assault was 17 April 1979 and evidence that the assault occurred on 17 February 1979 where the variance was caused by a clerical mistake in the indictment; the statute of limitations was not involved; all of the evidence at trial concerned an incident on 17 February; defense counsel\u2019s questioning of the witnesses clearly indicated that he was aware of the clerical error before trial; and defendant was not prejudiced in his preparation of an adequate defense by the variance.\n2. Criminal Law \u00a7\u00a7 33.2,34.7-felonious assault \u2014 prior misconduct toward victim\u2014 intent to kill - codefendant\u2019s confrontations with victim - motive\nIn a prosecution for assault with a deadly weapon with intent to kill on 17 February 1979, testimony that defendant participated in a beating of the victim in December and went to the victim\u2019s home in January with a shotgun was relevant to prove his intent to kill the victim on 17 February. Furthermore, evidence of separate confrontations with the victim by a codefendant, the son of defendant, was competent to show the general ill will existing between defendant\u2019s family and the victim and defendant\u2019s motive for the assault.\n3. Criminal Law \u00a7 102.5- improper question by prosecutor - objection sustained - failure to instruct jury to disregard\nDefendant was not prejudiced when the prosecutor asked defendant on cross-examination, \u201cYou figure you can buy your way out of anything, don\u2019t you?\u201d and the court sustained an objection to the question without instructing the jury on its own motion to disregard it, since the question did not have the degree of inflammatory impact sufficient to have seriously affected the outcome of the trial and the impropriety of the prosecutor\u2019s action in asking it.was not gross.\n4. Criminal Law \u00a7 102.9- jury argument - characterization of defendants as \u201clawless people\u201d\nIn this prosecution for assault with a deadly weapon inflicting serious injury, the prosecutor\u2019s remarks in his jury argument that the defendants were \u201clawless people\u201d who have \u201cno regard for the law books or the laws that have been established\u201d amounted to little more than an uncomplimentary characterization which was supported by the State\u2019s evidence, and the court\u2019s action in overruling defendant\u2019s objection to such argument did not constitute prejudicial error.\nAppeal by defendant from Reid, Judge. Judgment entered 20 December 1979 in Superior Court, Nash County. Heard in the Court of Appeals 6 October 1980.\nThis case was joined for trial with the case of State v. Johnny Ray Bailey. Both defendants were charged with an assault upon Glenwood Harris Perry. At the close of its evidence, the State took a voluntary dismissal in the case of J.R. Bailey. Defendant W.M. Bailey was convicted of assault with a deadly weapon inflicting serious bodily injury upon Perry in violation of G.S. 14-32(b). A four year sentence was suspended upon the conditions that defendant pay restitution to the victim for medical expenses and time lost at work, spend four weekends in the county jail, and not possess a firearm during the suspension.\nThe evidence discloses that, on 17 February 1979, Glenwood Harris Perry was shot in the lower leg with a .12 gauge shotgun, and that both defendant and his son, J.R. Bailey, were involved in the shooting. Eugene Perry testified that he saw defendant shoot his brother, Glenwood Perry. Defendant does not argue that the evidence was insufficient, as a matter of law, to convict him of a violation of G.S. 14-32(b). The facts, therefore, shall be set out only as necessary for an understanding of the issues raised on appeal.\nAttorney General Edmisten, by Associate Attorney Robert L. Hillman, for the State.\nValentine, Adams and Lamar, by I.T. Valentine, Jr., for defendant appellant." }, "file_name": "0377-01", "first_page_order": 403, "last_page_order": 410 }