{
  "id": 8619788,
  "name": "STATE v. DAN HARRIS",
  "name_abbreviation": "State v. Harris",
  "decision_date": "1933-03-22",
  "docket_number": "",
  "first_page": "422",
  "last_page": "424",
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      "cite": "204 N.C. 422"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "162 N. C., 122",
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  "analysis": {
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  "last_updated": "2023-07-14T22:38:28.108315+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. DAN HARRIS."
    ],
    "opinions": [
      {
        "text": "Adams, J.\nThe exceptions taken by the defendant, eliminating those which are formal, relate to an incident which occurred during the trial. A witness for the State testified on the cross-examination that she had reported the defendant\u2019s conduct to the chief of police at the request of the girl\u2019s mother. The inference was that the request had been communicated to the witness by letter. In arguing the case to the jury the defendant\u2019s counsel referred to the fact that no letter had been introduced and that no explanation of its absence had been made. The court took a recess until the next morning, and when it reconvened the solicitor gave the opposing counsel a letter and remarked, \u201cThere is the letter referred to in your speech to the jury yesterday.\u201d It is not known that any member of the jury heard the remark.\nAfter the verdict was announced the defendant made a motion for a new trial and set out in writing his version of the transaction, and the solicitor filed an opposing affidavit. The court overruled the defendant\u2019s motion, to which exception was entered, and pronounced judgment. The defendant excepted and appealed.\nThe regularity of the trial is presumed and the burden is upon the appellant to show prejudicial error. Quelch v. Futch, 175 N. C., 694; Blevins v. R. R., 184 N. C., 324; Rawls v. Lupton, 193 N. C., 428. The allegations made in the motion for a new trial and those in the affidavit differ in material respects. We cannot determine from conflicting aver-ments just what the facts are, and the appellant did not request the presiding judge to find the facts in regard to the letter. Under these circumstances we cannot assume that the contents or the existence of the letter was known to the jury. In overruling the motion for a new trial the court presumably found the facts against the defendant\u2019s contention. In Commissioner of Revenue v. Realty Co., ante, 123, it was said, \u201cTbe court found no facts, but in tbe absence of a request to tbis effect by tbe appellant, we must assume tbat tbe judgment is based upon sucb facts as are essential to support it.\u201d Likewise in Holcomb v. Holcomb, 192 N. C., 504: \u201cIn tbe absence of sucb finding, it is presumed tbat tbe judge, upon proper evidence, found facts sufficient to support bis judgment. McLeod v. Gooch, 162 N. C., 122. Hence, there.is nothing for us to review. Osborn v. Leach, 133 N. C., 428. \u2018We do not consider affidavits for tbe purpose of finding facts ourselves in motions of tbis sort.\u2019 Gardiner v. May, 172 N. C., 192. It would have been error for tbe judge not to have found tbe facts, bad be been requested to do so. McLeod v. Gooch, supra. But be is not required to make sucb finding in tbe absence of a request by some of tbe parties. Lumber Co. v. Buhmann, 160 N. C., 385. See Norton v. McLaurin, 125 N. C., 185, for full discussion of tbe subject.\u201d We find\nNo error.",
        "type": "majority",
        "author": "Adams, J."
      }
    ],
    "attorneys": [
      "Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.",
      "Charles U. Harris and R. E. Parris for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. DAN HARRIS.\n(Filed 22 March, 1933.)\nCriminal Daw D e \u2014 The regularity of the trial in the lower court is presumed, with the burden on appellant to show prejudicial error.\nWhere the allegations in defendant\u2019s motion for a new trial for misconduct affecting the jury and the solicitor\u2019s affidavit filed in response, thereto are conflicting as to whether the jury knew of the alleged misconduct, and the trial court overrules the motion without finding the facts, there being no request therefor, the Supreme Court will not attempt to find tlie facts from tlie conflicting averments, but it will presume that the trial court found facts supporting his action, and his judgment refusing the motion for a new trial will be upheld, the regularity of the trial being presumed with the burden on appellant to show prejudicial error.\nAppeal by defendant from Sinclair, J., at December Term, 1932, of Wake.\nNo error.\nThe defendant was indicted and convicted of having carnal knowledge. of a female child under the age of sixteen years, in breach of C. S., 4209. From the judgment pronounced he appealed.\nAttorney-General Brummitt and Assistant Attorney-General Seawell for the State.\nCharles U. Harris and R. E. Parris for defendant."
  },
  "file_name": "0422-01",
  "first_page_order": 488,
  "last_page_order": 490
}