{
  "id": 8548874,
  "name": "STATE OF NORTH CAROLINA v. LUCILE TIPTON (#69-829)",
  "name_abbreviation": "State v. Tipton",
  "decision_date": "1970-05-06",
  "docket_number": "No. 7028SC220",
  "first_page": "53",
  "last_page": "55",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "year": 1946,
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      "cite": "226 N.C. 530",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1962,
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    {
      "cite": "258 N.C. 188",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "29 S.E. 2d 449",
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      "reporter": "S.E.2d",
      "year": 1944,
      "opinion_index": 0
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    {
      "cite": "224 N.C. 128",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T18:36:14.673474+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "PARKER and Vatjghn,' JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LUCILE TIPTON (#69-829)"
    ],
    "opinions": [
      {
        "text": "MORRIS, J.\nDefendant\u2019s brief contains no statement of facts as required by Rules 27% and 28 of the Rules of Practice in the Court of Appeals of. North Carolina, nor does defendant bring forward assignment of error No. 3 in her brief. We, therefore, deem it abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.\nBy assignments of error Nos. 1, 2 and 4 defendant contends that the court erred in \u201callowing leading and/or speculative and/or prejudicial questions to be asked of interested witnesses.\u201d Defendant excepted to the court\u2019s permitting a witness, to testify that \u201cI think she (defendant) came in around 12:30 or 1:00.\u201d This exception is without merit. Even though the witness used the words \u201cthink\u201d and \u201caround\u201d, the lack of definiteness and positiveness in her testimony could only affect her credibility, and of this the jury is the sole judge. State v. Ham, 224 N.C. 128, 29 S.E. 2d 449 (1944). Defendant\u2019s other two assignments of error are bottomed on the court\u2019s permitting leading questions. The permitting of leading questions is within the discretion of the trial judge, especially in cases requiring evidence of the type which arose in this case, and will not be reviewed on appeal in the absence of a showing of abuse of that discretion. State v. Pearson, 258 N.C. 188, 128 S.E. 2d 251 (1962), and cases there cited. Defendant has shown no prejudice nor abuse nor do we perceive any. Assignments of error Nos. 1, 2 and 4 are overruled.\nBy assignment of error No. 5 defendant asserts that the court committed reversible error in failing to add to his charge on presumption of innocence an instruction that such presumption remains with the defendant throughout the trial. It is not error to fail to charge on presumption of innocence. State v. Perry, 226 N.C. 530, 39 S.E. 2d 460 (1946). \u201cThe presumption of innocence is a subordinate feature of the cause and if the defendants desired an amplification of the charge in this respect, they should have so requested at the time.\u201d State v. Perry; supra, 534. This assignment of error is not sustained.\nDefendant contends by assignment of error No. 6 that it was error for the court to fail to define reasonable doubt. The case of Williams v. U. S., 271 F. 2d 703 (4th Cir. 1959), the only case cited in defendant\u2019s brief, is not persuasive authority for her position in view of the long established rule in this State that the court is not required to define the term reasonable doubt in the absence of a request. See 3 Strong, N.C. Index 2d, Criminal Law, \u00a7 112, footnote 88 and 1969 supplement thereto. The record shows no request by defendant for such a definition.\nNo error.\nPARKER and Vatjghn,' JJ., concur.",
        "type": "majority",
        "author": "MORRIS, J."
      }
    ],
    "attorneys": [
      "Attorney. General Robert Morgan by Staff Attorney Edward L. Eatman, Jr., for the State.",
      "Horton and Horton by Shelby E. Horton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LUCILE TIPTON (#69-829)\nNo. 7028SC220\n(Filed 6 May 1970)\n1. Criminal Law \u00a7 166\u2014 abandonment of assignment of error\nAssignment of error not brought forward in the brief is deemed abandoned. Court of Appeals,Rule No. 28.\n2. Criminal Law \u00a7 89; Evidence \u00a7 15\u2014 lack of positiveness in testimony.\u2014 admissibility\nThe trial court did not err in the admission of testimony that the witness \u201cthought\u201d defendant came in a night club \u201caround\u201d 12:30 or 1:00, the lack of definiteness and positiveness in the testimony affecting only the credibility of the witness, of which the jury is the sole judge.\n3. Criminal Law \u00a7\u00a7 87, 175\u2014 allowance of leading questions\nIn this prosecution for assault with intent to kill inflicting serious injury not resulting in death, no abuse of discretion or prejudice has been shown in the court\u2019s allowance of leading questions 'by the solicitor.\n4. Criminal Law \u00a7 112\u2014 instructions \u2014 presumption of innocence\nThe trial court did not err in failing to add to the charge on the presumption of innocence an instruction that such presumption remains with defendant throughout the trial absent a request by defendant for such further instruction. \u2022\n5. Criminal Law \u00a7 112\u2014 instructions \u2014 failure to define reasonable doubt\nThe trial court did not err in failing to define reasonable doubt absent a request by defendant.\nAppeal by defendant from Snep-p, J., 11 November 1969 Session of BuNCombe County Superior Court.\nDefendant was tried under a valid bill of indictment charging her with assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. She was convicted of assault with a deadly weapon per se, inflicting serious injury and sentenced to five years in the Women\u2019s Division of the State Prison.\nThe evidence for the State tends to show that the prosecuting witness and her husband were dancing at a night club in Asheville and that the defendant came by and grabbed the \u201cprivates\u201d of the husband of the prosecuting witness. After a verbal exchange with the defendant, the prosecuting witness and her husband returned to their table. About an hour later, the prosecuting witness and her husband were going to get some potato chips and went past the defendant\u2019s table, where another verbal exchange took place. The prosecuting witness testified: \u201cThe first thing I knew, I felt a lick in my left side down below my rib cage.\u201d Another witness testified that he did not know the defendant but that he had seen the prosecuting witness and her husband in the night club before and had spoken to the husband before. He further testified that on the occasion in question, he saw the defendant stab the prosecuting witness with a knife about \u201c9 or 10 inches long and it looked like a fish scaling knife; ... I would say the blade was four or five inches long.\u201d\nThe evidence for the defendant placed her at the night club on the night in question, but she denied the stabbing and testified that she left before the prosecuting witness. Defendant had court-appointed counsel for trial, but retained private counsel to prosecute her appeal. She was permitted to appeal in forma pauperis.\nAttorney. General Robert Morgan by Staff Attorney Edward L. Eatman, Jr., for the State.\nHorton and Horton by Shelby E. Horton for defendant appellant."
  },
  "file_name": "0053-01",
  "first_page_order": 77,
  "last_page_order": 79
}