{ "id": 8573284, "name": "STATE OF NORTH CAROLINA v. BILLY JOE CHAPMAN", "name_abbreviation": "State v. Chapman", "decision_date": "1978-03-07", "docket_number": "No. 69", "first_page": "407", "last_page": "418", "citations": [ { "type": "official", "cite": "294 N.C. 407" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "186 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572261 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0413-01" ] }, { "cite": "80 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "239 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627279 ], "year": 1954, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0446-01" ] }, { "cite": "97 L.Ed. 593", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1953, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "344 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300869 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "619" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/us/344/0604-01" ] }, { "cite": "150 S.E. 2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561067 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0225-01" ] }, { "cite": "2 Dev. 1830", "category": "reporters:state", "reporter": "Dev.", "opinion_index": 0 }, { "cite": "13 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277552 ], "year": 1830, "opinion_index": 0, "case_paths": [ "/nc/13/0520-01" ] }, { "cite": "51 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167716 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0718-01" ] }, { "cite": "82 S.E. 2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603731 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0516-01" ] }, { "cite": "77 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "238 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604362 ], "year": 1953, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0257-01" ] }, { "cite": "200 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561660 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0259-01" ] }, { "cite": "233 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569830 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0391-01" ] }, { "cite": "239 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566912 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0674-01" ] }, { "cite": "136 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575562 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0760-01" ] }, { "cite": "204 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562871 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0195-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "233 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569762 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0357-01" ] }, { "cite": "181 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "232 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "292 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567711 ], "year": 1977, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0160-01" ] }, { "cite": "132 S.E. 603", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "191 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630901 ], "year": 1926, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0659-01" ] }, { "cite": "158 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572457 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0246-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "206 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565214 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0482-01" ] }, { "cite": "215 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0505-01" ] } ], "analysis": { "cardinality": 1144, "char_count": 26694, "ocr_confidence": 0.838, "pagerank": { "raw": 7.031606375034297e-07, "percentile": 0.9660787173306243 }, "sha256": "5cdfb2e8a0fd52e49495bdcd986004d17f0d8029f3e0fd85b433cd66512d7865", "simhash": "1:07bf95371508cc16", "word_count": 4601 }, "last_updated": "2023-07-14T21:31:40.522690+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. BILLY JOE CHAPMAN" ], "opinions": [ { "text": "SHARP, Chief Justice.\nDefendant brings to this Court nine of his original 15 assignments of error, to wit, Nos. 2-5 and 10-14. After a careful consideration of the record and briefs we have concluded that it would be a labor in vain to discuss in detail all of these assignments, for none discloses prejudicial error. The majority, therefore, will receive summary treatment.\nThe background of assignment No. 2 is this:\nOn direct examination Mauney testified that on the evening of 13 June 1974, while he, his wife and a neighbor, Mrs. W. S. Hyde, were sitting on the front porch and steps of his residence, defendant stopped his truck in front of the house and began shooting. When asked, \u201cCould you describe how you saw him shoot?\u201d Mauney replied, \u201cHe put the weapon out beside the rear view mirror, and began shooting, and I told my wife and my neighbor, I said, that\u2019s Bill Chapman. He\u2019s going to kill us. Get in the house.\u201d\nDefendant\u2019s motion to strike Mauney\u2019s entire answer was denied. Defendant now argues that the statement, \u201cThat\u2019s Bill Chapman. He\u2019s going to kill us,\u201d was unresponsive to the question and constituted an impermissible expression of opinion by the witness on a material fact. This assignment is devoid of merit for the following reasons: (1) Counsel\u2019s motion to strike was general. He did not single out the allegedly objectionable portion. State v. Pope, 287 N.C. 505, 215 S.E. 2d 139 (1975). (2) After Mauney had testified, Mrs. Hyde took the stand and, without objection, gave essentially the same account of the shooting, repeating almost verbatim Mauney\u2019s sponstaneous declaration of defendant\u2019s intent. State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974). (3) The challenged statement was admissible both as a spontaneous declaration and as a part of the res gestae. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Feaganes, 272 N.C. 246, 158 S.E. 2d 89 (1967).\nAssignment No. 4 parallels No. 2. Mauney was allowed to testify over objection that after defendant had left the scene of the shooting he saw Mrs. Chapman sitting in her car. She called to him, \u201cUncle Robert, have you seen Bill? He\u2019s mad as hell and on his way up here to kill you.\u201d Mauney\u2019s response was, \u201cHe\u2019s just tried it, but he didn\u2019t get it done.\u201d\nThe trial judge denied defendant\u2019s motion to strike the statement \u201che\u2019s on the way up here to kill you.\u201d If error was committed by the admission of Mrs. Chapman\u2019s statement to Mauney, it was cured shortly thereafter when Mrs. W. S. Hyde, without objection, repeated Mauney\u2019s testimony as quoted above ipsissimis verbis. State v. Greene, supra; 4 Strong\u2019s North Carolina Index 3d, Criminal Law \u00a7 169.3.\nAssignment No. 5 challenges the admission of Mauney\u2019s testimony that after the shooting his wife said to him, \u201cCall the Doctor.\u201d That this statement is hearsay cannot be doubted, but it is also clear that its admission could not have possibly influenced the jury\u2019s verdict. Assignment No. 11 is equally trifling. Mr. W. S. Hyde, a witness for the State, testified that before Mrs. Chapman left the scene of the shooting he heard Mrs. Mauney say to her, \u201cHoney, you\u2019re wrong about that.\u201d From the record, what Mrs. Mauney\u2019s niece was \u201cwrong about\u201d is so obscure it could not be held prejudicial error.\nIn assignment No. 13 defendant asserts that the trial judge, after having permitted the prosecuting witness to repeat hearsay statements made by his wife, erred in sustaining the State\u2019s objection to questions intended to elicit similar hearsay from defendant. The proffered testimony related to statements Mrs. Mauney made to defendant at Lake Norman in October 1972 when she came to warn the Chapmans \u201cto go out on the pier\u201d because Mauney \u201cwas mad and had his pistol.\u201d Manifestly, the judge\u2019s ruling was correct, and his exclusion of incompetent hearsay upon the State\u2019s objection would not render prejudicial the harmless error of other rulings. The judge was not required to balance the scales with an equal number of hearsay statements made by the wives of the prosecuting witness and the defendant.\nDefendant\u2019s assignment of error No. 3 relates to the failure of the trial judge to rule on six of the objections which defendant made during the trial. Defendant correctly asserts that \u201cthe parties are entitled, as a matter of right, to have the judge definitely decide all questions relating to the admissibility of evidence, and to admit or reject it accordingly.\u201d State v. Whitener, 191 N.C. 659, 662, 132 S.E. 603, 604 (1926). Indubitably, there are times when this obligation will appear onerous to a trial judge exasperated by too many seemingly meritless objections. Nonetheless, \u201ccounsel is entitled to an explicit ruling on each objection interposed.\u201d State v. Staley, 292 N.C. 160, 167, 232 S.E. 2d 680, 685 (1977); State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971).\nA trial judge\u2019s failure to rule upon an objection is not only error; it is an abdication of the judicial function. In the context of this case, however, we are convinced that the error was harmless. Defendant\u2019s objections had little, if any, merit. True, in both Staley and Lynch, supra, the Court reversed the defendants\u2019 convictions despite the lack of merit in the ignored objections. However, in both of those cases the trial judge\u2019s attitude and related actions, combined with the sheer number of unanswered objections, raised the reasonable inference that he had communicated to the jury an opinion that defendant was guilty as charged. By contrast, in this case, the judge\u2019s conduct of the trial and his various rulings, although not always free from error, did not amount singly or in combination, to an expression of opinion as to defendant\u2019s guilt. We perceive no possibility that the judge\u2019s failure to rule on the six objections influenced the verdict.\nAssignment 10 is that the trial judge erred in refusing to allow defendant to exercise his right to put into the record the response which the prosecuting witness Mauney would have made to a question on cross-examination had he been allowed to answer.\nMauney testified on cross-examination that his pistol was loaded with \u201chollow tip\u201d ammunition and that he did not have \u201cthe least idea what the effect of a hollow tip bullet is\u201d; that he bought these hollow tip bullets from a friend. At the close of this cross-examination, counsel for defendant said, \u201cI want to go back to one question. Why is it you put hollow tip bullets in your gun?\u201d The State\u2019s objection was sustained, and the court refused to permit Mauney to answer for the record. Defendant\u2019s assignment No. 10 specifies this refusal as prejudicial error.\nOrdinarily, counsel should be allowed to insert in the record the answer to a question to which objection has been sustained. Indeed, an exception to the action of the trial court will be worthless on appeal unless the answer is thus preserved. 1 Stansbury\u2019s N.C. Evidence \u00a7 26 (Brandis rev. 1973). We also note that the Rules of Civil Procedure specifically require the judge to preserve the offer of evidence in the record in a civil case. G.S. \u00a7 1A-1, Rule 43(c). However, where the witness has already answered the question sufficiently to demonstrate the immateriality of the inquiry, the judge\u2019s refusal to allow the preservation of the answer will not be held prejudicial error. State v. Stanfield, 292 N.C. 357, 233 S.E. 2d 574 (1977); State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50 (1970). See State v. Willis, 285 N.C. 195, 204 S.E. 2d 33 (1974); Highway Commission v. Pearce, 261 N.C. 760, 136 S.E. 2d 71 (1964). In the case under consideration, the witness had already testified that he did not know the effect of hollow tip bullets; specifically, he was unaware of their greater destructiveness on striking human tissues. Moreover, whatever his answer might have been, it would have been immaterial. The witness was the victim of a shooting; not the assailant. There is not a shred of evidence to suggest that Chapman acted out of self-defense. All the evidence tends to show that Chapman\u2019s attack upon Mauney was totally without justification.\nNotwithstanding our ruling here, we are constrained to say that we regard the trial judge\u2019s refusal to allow counsel to complete the record as a regrettable judicial mistake. A judge should be loath to deny an attorney his right to have the record show the answer a witness would have made when an objection to the question is sustained. In refusing such a request the judge incurs the risk (1) that the Appellate Division may not concur in his judgment that the answer would have been immaterial or was already sufficiently disclosed by the record, and (2) that he may leave with the bench and bar the impression that he acted arbitrarily.\nAssignment No. 12 asserts that the trial judge erred in permitting the private prosecutor to ask two questions concerning \u201calleged prior criminal acts of the defendant.\u201d These questions were directed to defendant on cross-examination for the purpose of impeaching his credibility as a witness. As long as such questions are asked in good faith they are permissible. E.g., State v. Foster, 293 N.C. 674, 239 S.E. 2d 449 (1977); State v. Williams, 292 N.C. 391, 233 S.E. 2d 507 (1977); State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973). Accordingly, it was not error for the private prosecutor to ask defendant on cross-examination if he had stolen some angle irons which he admitted had come from his employer\u2019s premises but contended it was \u201cimmaterial that he didn\u2019t pay for them.\u201d\nLikewise, it was not error for the prosecution to have asked defendant on cross-examination if, after having had trouble \u201cwith some blacks at a beer joint,\u201d he had gone home, procured his gun, and come back for them. Defendant denied that he had done anything of the sort and explained that \u201cquite a few years ago,\u201d after he had emerged from \u201can eating establishment,\u201d his car \u201cwas ganged by a bunch of colored people.\u201d Seeing \u201cno other way out of it,\u201d he reached into his glove compartment as if to get a pistol and said, \u201cAll right, come on.\u201d \u201cAnd that,\u201d he said, \u201cis all there was to it. Mr. Mauney don\u2019t know what he\u2019s talking about.\u201d\nThe private prosecutor had previously addressed questions pertaining to defendant\u2019s alleged \u201ctrouble with some blacks\u201d to two witnesses who had testified that defendant\u2019s general character and reputation in his community was good. On cross-examination these witnesses were asked if they were aware that defendant \u201cgot his gun and went after some black people in Charlotte.\u201d Each said he was unaware that such an incident had occurred. Notwithstanding, these questions were improper and defendant\u2019s objections to them should have been sustained. \u201cWhen a defendant introduces evidence of his good character, the State has the right to introduce evidence of his bad character, but it is error to permit the State to cross-examine the character witnesses as to particular acts of misconduct on the part of the defendant. Neither is it permissible for the State to introduce evidence of such misconduct. The general rule is that a character witness may be cross-examined as to the general reputation of the defendant as to particular vices or virtues, but not as to specific acts of misconduct.\u201d State v. Green, 238 N.C. 257, 258, 77 S.E. 2d 614, 615 (1953). This rule is well established in our jurisdiction. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954); State v. Church, 229 N.C. 718, 51 S.E. 2d 345 (1948); Barton v. Morphes, 13 N.C. 520 (2 Dev. 1830).\nThe error in allowing the private prosecutor to question defendant\u2019s character witnesses about their knowledge of a specific act of misconduct by defendant, like the other errors in this trial, was harmless. This conclusion is irrefutably established as an actual fact since defendant stands guilty by his own testimony at trial. He testified that, infuriated by a request from Mauney that he return a birthday present Mauney had given his son, he got his .38 snub-nose pistol with a six-inch barrel, threw off his wife who was trying to restrain him, and drove to the Mauney home about six miles away; that during the 10 minute drive he had time to think about what he intended to do. His purpose, he said, was to get Mauney off his back; he \u201chad had enough of him\u201d and \u201cenough in life is enough.\u201d Once at Mauney\u2019s, he stuck his gun out the window of his truck and fired six shots \u2014 all he had. He said, \u201cI was shooting at Mr. Mauney. I meant to hit him below the knees, if I could. I just wanted him off my back. . . . Yes, sir, I\u2019m proud of what I did.\u201d\nIn the light of defendant\u2019s admissions, the damage to the credibility of defendant\u2019s character witnesses or the damage to defendant\u2019s own character caused by the prosecutor\u2019s improper questions (were we to assume any damage was done) dwindles to insignificance. Had myriads of witnesses of unimpeachable credibility vouched for defendant\u2019s reputation and good character, any reasonable jury would still have convicted him on his own testimony.\nAlthough the test for harmless error has been variously stated (see 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 167), the applied rule has always been that so long as there is no reasonable possibility that a different verdict would be reached at a new and error free trial then the error is harmless, and defendant is not entitled to a new trial. E.g., State v. Turner, 268 N.C. 225, 150 S.E. 2d 406 (1966). \u201cA defendant is entitled to a fair trial but not a perfect one.\u201d Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593, 605 (1953). In this case the errors individually do not require reversal; collectively they did not compel the granting of a mistrial. A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law. State v. Crocker, 239 N.C. 446, 450, 80 S.E. 2d 243, 246 (1954). We therefore overrule defendant\u2019s final assignment of error, No. 14, that the trial judge erred in not declaring a mistrial because of the \u201cprejudiced and inflammatory questions posed by the special prosecutor.\u201d\nIn conclusion we note that when this case was called for trial an assistant solicitor informed the court that \u201cMr. Cooke appears with the State as a private prosecution on behalf of Mr. Mauney. By and with the permission of the court, we request that Mr. Cooke be allowed to examine the jury.\u201d Permission was granted and thereafter the record discloses no further participation in the case by the solicitor or his assistants. The record does show, however, that after verdict the court conferred with counsel for defendant and with Mr. Cooke with reference to punishment and that later, in open court, both made \u201cextensive statements\u201d on that subject. It is, of course, a permissible practice of long standing for private prosecution, with the consent of the solicitor and the court, to assist the State in a prosecution. State v. Best, 280 N.C. 413, 186 S.E. 2d 1 (1972). In the absence of special circumstances, however, the law contemplates that the solicitor shall remain in charge of the prosecution, and public policy requires that he do so.\nFor the reasons heretofore stated, in the trial below we find no error.\nNo error.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, William A. Raney, Jr., Assistant Attorney General, and Jo Anne Sanford Routh, Associate Attorney, for the State.", "Childers and Fowler and Roberts, Caldwell and Planer for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLY JOE CHAPMAN\nNo. 69\n(Filed 7 March 1978)\n1. Criminal Law \u00a7 73.4\u2014 victim\u2019s statement \u2014 spontaneous declaration \u2014 res gestae\nIn this prosecution for felonious assault, the victim\u2019s testimony that he had told his wife and his neighbor, \u201cThat\u2019s Bill Chapman. He\u2019s going to kill us,\u201d was competent both as a spontaneous declaration and as a part of the res gestae.\n2. Criminal Law \u00a7 169.3\u2014 admission of testimony \u2014 error cured by similar testimony admitted without objection\nIn this prosecution for felonious assault, any error in the admission of the victim\u2019s testimony that defendant\u2019s wife told him defendant was \u201con the way up here to kill you\u201d was cured when another witness thereafter, without objection, repeated the testimony ipsissimis verbis.\n3. Criminal Law \u00a7 73.1\u2014 exclusion of hearsay \u2014 no effect on other rulings permitting hearsay\nThe trial court\u2019s proper exclusion of incompetent hearsay upon the State\u2019s objection did not render prejudicial the harmless error of other rulings permitting the victim to repeat hearsay statements made by his wife.\n4. Criminal Law \u00a7\u00a7 99.4, 162.7\u2014 failure to rule on objections \u2014 harmless error\nThe trial judge\u2019s failure to rule on six of the objections made by defendant during the trial was not only error but was also an abdication of the judicial function. However, such error was harmless where the judge\u2019s conduct of the trial and his various rulings did not amount singly or in combination to an expression of opinion as to defendant\u2019s guilt, and there is no possibility that the judge\u2019s failure to rule on the objections influenced the verdict.\n5. Criminal Law \u00a7 169.6\u2014 refusal to permit excluded testimony to be placed in record \u2014 harmless error\nOrdinarily, a counsel should be allowed to insert in the record the answer to a question to which objection has been sustained. However, where the witness has already answered the question sufficiently to demonstrate the immateriality of the inquiry, the judge\u2019s refusal to allow the preservation of the answer will not be held prejudicial error.\n6. Criminal Law \u00a7 169.6\u2014 refusal to permit excluded testimony to be placed in record\nA judge should be loath to deny an attorney his right to have the record show the answer a witness would have made when an objection to the question is sustained since, in refusing such a request, the judge incurs the risk (1) that the Appellate Division may not concur in his judgment that the answer would have been immaterial or was already sufficiently disclosed by the record, and (2) that he may leave with the bench and bar the impression that he acted arbitrarily.\n7. Criminal Law \u00a7 86.5\u2014 cross-examination of defendant \u2014 prior acts of misconduct\nIt was not error for the private prosecutor to ask defendant on cross-examination (1) whether he had stolen some angle irons which he admitted had come from his employer\u2019s premises but contended it was immaterial that he didn\u2019t pay for them and (2) whether, after having had trouble with some blacks at a beer joint, he had gone home, procured his gun, and come back for them.\n8. Criminal Law \u00a7 85.2\u2014 cross-examination of character witnesses \u2014specific acts of misconduct\nIn this prosecution for felonious assault, the trial court erred in permitting the prosecutor to ask defendant\u2019s character witnesses if they were aware that defendant on another occasion \u201cgot his gun and went after some black people in Charlotte,\u201d since a character witness may not be cross-examined as to specific acts of misconduct by defendant. However, such error was harmless where defendant stands guilty of felonious assault by his own testimony at the trial.\n9. Criminal Law \u00a7 128.1\u2014 when mistrial is appropriate\nA mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law.\n10. Criminal Law \u00a7 100\u2014 private prosecutor \u2014 duty of prosecutor to remain in charge of case\nIt is a permissible practice for private prosecution, with the consent of the district attorney and the court, to assist the State in a prosecution, but in the absence of special circumstances, the law contemplates and public policy requires that the district attorney shall remain in charge of the prosecution.\nOn defendant\u2019s petition for discretionary review of the unpublished decision of the Court of Appeals, filed 7 April 1976, which upheld defendant\u2019s trial before Kirby, J., at the 17 February 1975 Session of GASTON Superior Court. The case was docketed and argued as Case No. 63 in the Fall Term 1976.\nDefendant appeals his conviction of \u201cassault with a deadly weapon with intent to kill inflicting serious injury,\u201d a violation of G.S. 14-32, and the judgment that he \u201cbe imprisoned for the term of not less than one year nor more than ten years.\u201d In its judgment the court recommended work-release for defendant.\nThe prosecuting witness, Robert J. Mauney, and the defendant, Billy Joe Chapman, are related by marriage in that Mrs. Mauney is Mrs. Chapman\u2019s aunt. Mauney lived in Stanley; defendant, about six miles away in Mount Holly. In 1967 the two men together bought a lot on Lake Norman, and each put a \u201cvacation\u201d mobile home on it. Thereafter relations between the two friends deteriorated. After several acrimonious incidents, in the retelling of which each accused the other of threatening his life, Chapman sold his interest in the lot to Mauney in February 1973. At that time defendant told Mrs. Mauney he \u201cnever wanted to hear tell of [Mauney], see him, or nothing else \u2014 no more\u201d; that he \u201cwas through with him.\u201d The two men did not speak directly to one another again. Precarious communications, however, were maintained between the two families through Mrs. Lula Robinson, Mrs. Mauney\u2019s sister. At the time of the trial defendant was 43 years old.\nOn 13 June 1974, at Mrs. Mauney\u2019s request, Mrs. Robinson called Mrs. Chapman and asked her to have her husband return to Mauney a pair of \u201cweight-lifting shoes.\u201d Mauney testified that several years before he had lent the shoes to defendant\u2019s son, Michael. (At the time of the trial Michael was 21 years old.) Defendant, however, testified that Mauney had given the shoes to Michael on his birthday five or six years earlier. When Mrs. Chapman informed defendant that \u201cMauney wanted the weight-lifting shoes back,\u201d he interpreted the request as a calculated harassment and was enraged by it. In pertinent part, defendant\u2019s version of his subsequent conduct, as detailed on his direct examination, is quoted below:\n\u201cAs a result of talking to my wife [at supper], I pushed my plate aside, went into the bedroom. I had a .38 revolver in there. . . . My state of mind was to get him [Mauney] off my back to quit bugging me. I was angry. I was fairly angry. I\u2019d have to be to do what I done. ... I knew Robert Mauney carried a gun. . . . He always had the gun on him.\n\u201cMy wife came in there and tried to stop me, and I remember knocking her over on the bed and all, to get her out of my way. I went and got in my truck. I proceeded to his home. When I saw him ... he was on about the third or fourth step from the bottom [of his front porch] . . . leaning his arm over the handrail. When I stopped, I come out and I was firing at his knees down. I said, T want to just get you off my back. I\u2019ve had enough of you. I thought we had had this over with.\u2019 I fired six shots is all I had. . . . Mrs. Zoe Mauney . . . was up on top of the porch, hollering . . . and [Mauney] jumped over the rail. My state of mind was to get him off my back. I had had enough of him. I thought enough in life was enough. ... He jumped over the banister and came back firing while I was still firing. ... He was behind the steps and all then, and I had a couple more shots, and I come out with those; and I pulled off just as soon as I got through with the six shots. He shot at me six times. My truck was not hit in any way. I went home. . . .\u201d\nDefendant testified on cross-examination that it was 10 minutes from the time his wife told him about the conversation with Mrs. Robinson that he arrived at the Mauney residence in Stanley. Mauney\u2019s request for the shoes made him \u201cfighting mad,\u201d and he got his gun, a .38 snub-nose Smith & Wesson with a six-inch barrel. His wife, he stated, was hanging on him and pleading, \u201cdon\u2019t go out there and get in trouble.\u201d Notwithstanding, he \u201cpushed her off\u2019 and drove the five or six miles to the Mauney residence with the pistol on the seat beside him. He further said: \u201cI drove around the speed limit and I had time to think and reflect all this time about what I had planned to do when I got there. It took me 10 minutes. . . . When I pulled up ... I took my gun and stuck it out of the window in my right hand and started shooting. ... I did not intend to kill him. I fired at him. . . . I fired at Mr. Mauney. I was shooting at Mr. Mauney. I meant to hit him below the knees, if I could. I just wanted him off my back. . . . When I approach a dangerous man, I approach him dangerous. Yes, sir, I\u2019m proud of what I did. And when I went home the gun was empty. I know now that Mike came right behind my wife in another car. I was angry. I stayed angry. These bullets were .38, were special oversized bullets. They carry a big load of lead.\u201d\nOn redirect examination defendant said he had been in the United States Marine Corps for four years and that he was a sharpshooter. He also repeated that he \u201cwas plenty angry\u201d when he arrived at the Mauney residence.\nMauney, aged 50, testified that bullets or fragments of bullets from defendant\u2019s gun struck him in the left side of his face, left hand, and right knee. Dr. Wilson Lynch, who treated Mauney for these wounds, said he found four small fragments in him but not a whole bullet. He described Mauney\u2019s wounds as \u201csuperficial puncture wounds\u201d or \u201csmall points on the skin with some swelling underneath.\u201d The knee, which had \u201ca fairly marked entry and exit wound\u201d contained a fragment. This was the deepest wound. Two minute fragments remain in his face but there are now no scars to show the penetration. \u201cThe fragment remaining in his hand is probably half of a .38 caliber.\u201d It has become \u201cscarred to a tendon\u201d and the result is a limitation of motion in his left hand.\nDefendant\u2019s wife, Mrs. Jean Staton Chapman, testified that when she told her husband that Mauney \u201cwants his weight shoes that he gave Michael\u201d he became emotionally upset and \u201clooked like he was wild.\u201d She believed he was not \u201cin contact with reality.\u201d Failing in efforts to keep defendant at home, she called her son Michael and told him to come at once; that she believed his father had gone crazy and was headed toward Stanley with a pistol. She then set out in her car hoping to reach the Mauney residence before he did; she arrived just in time to witness the shooting. After defendant had driven away Mauney approached her car and she inquired if he had been hurt. He said, \u201cNo, I\u2019m not, but I got him.\u201d That statement \u201cthrew all over\u201d her, and she told Mauney that but for .his conduct they \u201cwouldn\u2019t have all this trouble\u201d and she believed \u201che had run Bill crazy.\u201d She then left to find her husband.\nOther facts necessary to the decision in this case will appear in the opinion.\nRufus L. Edmisten, Attorney General, William A. Raney, Jr., Assistant Attorney General, and Jo Anne Sanford Routh, Associate Attorney, for the State.\nChilders and Fowler and Roberts, Caldwell and Planer for defendant appellant." }, "file_name": "0407-01", "first_page_order": 431, "last_page_order": 442 }