{ "id": 8564608, "name": "STATE OF NORTH CAROLINA v. MARION URIAH HODGES, JR.", "name_abbreviation": "State v. Hodges", "decision_date": "1978-11-28", "docket_number": "No. 5", "first_page": "66", "last_page": "74", "citations": [ { "type": "official", "cite": "296 N.C. 66" } ], "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": "241 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "35 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549094 ], "opinion_index": -1, "case_paths": [ "/nc-app/35/0328-01" ] }, { "cite": "191 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627998 ], "opinion_index": 0, "case_paths": [ "/nc/211/0555-01" ] }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "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": "213 S.E. 2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "286 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570153 ], "opinion_index": 0, "case_paths": [ "/nc/286/0698-01" ] }, { "cite": "185 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571913 ], "opinion_index": 0, "case_paths": [ "/nc/280/0322-01" ] }, { "cite": "154 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566668 ], "opinion_index": 0, "case_paths": [ "/nc/270/0215-01" ] }, { "cite": "98 S.E. 838", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654378 ], "opinion_index": 0, "case_paths": [ "/nc/177/0313-01" ] }, { "cite": "2 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629959 ], "opinion_index": 0, "case_paths": [ "/nc/215/0407-01" ] }, { "cite": "45 S.E. 944", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659449 ], "opinion_index": 0, "case_paths": [ "/nc/133/0714-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "185 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569769 ], "opinion_index": 0, "case_paths": [ "/nc/280/0051-01" ] }, { "cite": "200 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "284 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562038 ], "opinion_index": 0, "case_paths": [ "/nc/284/0383-01" ] }, { "cite": "181 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "429 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6085, 7371, 6739, 5782, 5823 ], "opinion_index": 0, "case_paths": [ "/us/429/0809-04", "/us/429/0809-01", "/us/429/0809-03", "/us/429/0809-05", "/us/429/0809-02" ] }, { "cite": "223 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "289 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570856 ], "opinion_index": 0, "case_paths": [ "/nc/289/0500-01" ] }, { "cite": "196 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "283 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559336 ], "opinion_index": 0, "case_paths": [ "/nc/283/0533-01" ] }, { "cite": "22 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629163 ], "opinion_index": 0, "case_paths": [ "/nc/222/0160-01" ] } ], "analysis": { "cardinality": 776, "char_count": 18118, "ocr_confidence": 0.819, "pagerank": { "raw": 2.4636227589834073e-07, "percentile": 0.8057751629535158 }, "sha256": "5bf7e0a46b9e0c358fe4d13b890b27b901cf3705ea8f16e2997e69dc2ad05c69", "simhash": "1:e68a1826a727f8d7", "word_count": 3043 }, "last_updated": "2023-07-14T21:17:53.962359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Britt took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. MARION URIAH HODGES, JR." ], "opinions": [ { "text": "BRANCH, Justice.\nWe first consider whether the Court of Appeals correctly decided that there was no error in the rulings of the trial judge which sustained objections to questions relating to defendant\u2019s acts of self defense.\nIn this connection, the record discloses the following:\nQ. Mr. Hodges, why did you shoot Mr. Harris?\nA. Well, I was afraid of him and I knew he was going to hurt me.\nObjection of the District Attorney sustained.\nQ. Can you tell us why you shot Mr. Harris?\nA. I knew he was going to hurt me.\nObjection of District Attorney sustained.\nI was afraid of him because I knowed he had a bad reputation. He had a reputation for being dangerous . . .\nQ. I ask you, Mr. Hodges, why you were afraid of him.\nObjection by the District Attorney sustained.\nThe witness was permitted to make the following answer to the court reporter in the absence of the jury: \u201cbecause he had a dangerous reputation. He assaulted his brother, was charged with assaulting his brother and two or three more in the neighborhood.\u201d\nDefendant contends that these rulings precluded a showing that he killed his adversary under circumstances which caused defendant to reasonably believe that it was necessary to shoot in order to save himself from death or great bodily harm in the lawful exercise of his right of self-defense.\nWe are of the opinion that the trial judge erred by sustaining the objections to the questions which sought to present evidence that defendant acted because of a reasonable apprehension of death or great bodily harm when he shot and killed Kenneth Harris. See, State v. Champion, 222 N.C. 160, 22 S.E. 2d 232. However, we agree with the conclusion of the majority of the Court of Appeals that the rulings of the trial judge did not result in prejudicial error to defendant.\nIn State v. Edmondson, 283 N.C. 533, 196 S.E. 2d 505, under virtually identical circumstances, this Court answered the question posed by this assignment of error adversely to the defendant. There, Justice Lake, speaking for the Court, stated:\nThe third assignment of error is to the court\u2019s sustaining objections to the defendant\u2019s testimony as to whether Jones overheard the defendant\u2019s statement by telephone to Scott as to the reason why the defendant did not like to ride around with Jones. It appears from the record that the solicitor\u2019s objections were sustained after the witness had answered in the presence of the jury and the jury was not instructed to disregard the testimony. Thus, as a practical matter, the defendant had the benefit of the evidence. Furthermore, without objection, the defendant subsequently testified that when he and his companions arrived at the scene of the shooting, in response to an inquiry by the deceased, the defendant stated to the deceased exactly the same reason for not wanting to ride around with him. This cured any error which there may have been in the ruling of the court now assigned as error. \u201cThe exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import, or the evidence is thereafter admitted, or the party offering the evidence has the full benefit of the fact sought to be established thereby by other evidence.\u201d Strong, N.C. Index 2d, Appeal and Error, \u00a7 49, and numerous cases there cited.\nHere the record indicates that, with one exception, the trial judge did not sustain the State\u2019s objections until defendant had answered the questions in the presence of the jury. Thus, as a practical matter defendant had the benefit of this evidence, and there was no motion to strike or instruction to the jury to disregard defendant\u2019s answers. The answers which the jury heard and the one response that was placed in the record in the jury\u2019s absence all tended to show that deceased had a reputation of being a dangerous man and that defendant was aware of that reputation. Moreover, similar testimony was admitted without objection. Finally, we note that the rulings of the trial judge in no way indicated an opinion as to the defendant\u2019s guilt or innocence or as to the weight and credibility of the evidence offered. Under the particular circumstances of this case, we hold that the Court of Appeals correctly decided that these rulings by the trial judge did not result in prejudicial error. The facts in instant case, as in Edmondson, do not present the question of whether the trial judge\u2019s erroneous rulings would have been prejudicial absent the admission of evidence of like import without objection. We reserve decision on this question until presented by a proper case.\nDefendant assigns as error the failure of the trial judge to grant his motion for judgment of nonsuit as to the charge of murder in the second degree.\nMurder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E. 2d 296, death sentence vacated, 429 U.S. 809; State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393.\nIn instant case, all the evidence tends to show that defendant intentionally inflicted a wound with a deadly weapon which caused deceased\u2019s death. Such evidence raises inferences of an unlawful killing with malice which are sufficient to permit, but not require, the jury to return a verdict of murder in the second degree. State v. Jackson, 284 N.C. 383, 200 S.E. 2d 596; State v. Rummage, 280 N.C. 51, 185 S.E. 2d 221. Defendant\u2019s evidence of self defense or that he killed in a heat of passion upon sudden provocation are matters of excuse and mitigation which should be weighed against the raised inferences of unlawfulness and malice. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575, rev\u2019d on other grounds, 432 U.S. 233.\nWe hold that there was ample evidence to permit the jury to draw reasonable inferences that defendant unlawfully and with malice killed Kenneth Harris on 22 November 1976.\nDefendant argues that the Court of Appeals erred in finding no error in the trial judge\u2019s ruling which admitted, over objection, the testimony of Mrs. Kenneth Harris concerning a telephone conversation with defendant.\nThis record indicates that the witness had previously testified at some length, without objection, concerning this telephone conversation. When she was later recalled, she, in substance, repeated the same testimony and added that she told defendant that she considered his statement a threat. She also expanded her original testimony by stating that she had engaged in prior telephone conversations with defendant during which she recognized his voice. It was at this point that defendant finally lodged a general objection.\nClearly, all of the testimony to which defendant objected was not inadmissible since a substantial portion of it had been previously admitted without objection. Defendant failed to specify the portion of the testimony to which he directed his objection.\nIn State v. Ledford, 133 N.C. 714, 45 S.E. 944, this Court considered a question similar to the one presented by this assignment of error and stated:\nThe objections are general, and the rule is well settled that such objections will not be entertained if the evidence consists of several distinct parts, some of which are competent and others not. In such a case the objector must specify the ground of the objection, and it must be confined to the incompetent evidence. Unless this is done he cannot afterwards single out and assign as error the admission of that part of the testimony which was incompetent.\nSee also, Wilson v. Williams, 215 N.C. 407, 2 S.E. 2d 19; Nance v. Telegraph Co., 177 N.C. 313, 98 S.E. 838.\nIn instant case, defendant\u2019s objection to the testimony of this witness is to portions of the evidence en masse. He failed to point out the portion of the evidence which was objectionable. Defendant\u2019s failure to so do waived his right to assign as error the portion of the testimony which he contended was incompetent.\nDefendant assigns as error the trial court\u2019s instruction to the jury as to the State\u2019s right to rebut evidence of deceased\u2019s character for violence. The State presented evidence of deceased\u2019s good character and evidence that he was neither a dangerous nor violent man. Defendant did not object to the introduction of any of this evidence. Judge Small instructed the jury that, \u201cThe State may rebut the defendant\u2019s evidence of deceased\u2019s character for violence by evidence of the good character of Kenneth Harris for peace and quiet.\u201d The instruction correctly stated the law. State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48; State v. Champion, supra. Defendant contends, however, that this instruction was improper as the State introduced no evidence of Kenneth Harris\u2019s reputation for peace and quiet. Although some support may be found in Johnson and Champion for defendant\u2019s contention, we think that defendant\u2019s reliance upon these cases is misplaced. In Johnson and Champion, the defendant timely objected to the questioned evidence. Here defendant failed to object.\nIt is well established that, nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered. State v. Jones, 280 N.C. 322, 185 S.E. 2d 858; State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255, modified 428 U.S. 902, and cases cited therein.\nThis assignment of error is overruled.\nDefendant assigns as error the trial court\u2019s instruction as to the law and as to the weight to be given to a statement defendant made to a deputy sheriff prior to trial. The jury was instructed that, \u201cIf you find the defendant made the statement, then you should consider all the circumstances under which it was made in determining whether it was a truthful statement, and the weight that you will give to it.\u201d Defendant contends that the trial judge should have given the instruction set out in State v. Edwards, 211 N.C. 555, 191 S.E. 1, to the effect that the whole of a confession must be taken together, considering those portions favorable to as well as those portions against the defendant. Edwards differs from this case in that in Edwards the trial judge instructed the jury to take the defendant\u2019s exculpatory statements \u201cwith a grain of salt.\u201d The Edwards instruction was not warranted in the instant case because here the trial judge did not instruct the jury to weigh the statement in favor of either party.\nWe find no error in the instructions given. Moreover, the record shows no exception 14 which was the basis for the assignment of error concerning the weight to be given the statement. Such assignment of error is, therefore, not to be considered on appeal. Rule 10, Rules of Appellate Procedure.\nWe have carefully examined the remaining assignments of error and this entire record. Our examination discloses nothing which would warrant disturbing the verdict of the jury or the judgment entered thereon.\nAffirmed.\nJustice Britt took no part in the consideration or decision of this case.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Rufus h. Edmisten, Attorney General, by Kaye R. Webb, Associate Attorney, for the State.", "W. B. Carter and Clarence W. Griffin, attorneys for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARION URIAH HODGES, JR.\nNo. 5\n(Filed 28 November 1978)\n1. Homicide \u00a7 19.1\u2014 reputation of deceased \u2014exclusion of evidence \u2014 harmless error\nWhile the trial judge in a homicide case erred in sustaining the State\u2019s objections to questions to defendant which sought to elicit evidence that defendant shot deceased because he knew of deceased\u2019s reputation as a dangerous man and was afraid of him, defendant was not prejudiced by such error where defendant had the benefit of this evidence because the trial judge did not sustain the State\u2019s objection until defendant had answered the questions in the presence of the jury and there was no motion to strike or instruction to the jury to disregard defendant\u2019s answers; similar testimony was admitted without objection; and the rulings of the trial judge in no way indicated an opinion as to defendant\u2019s guilt or innocence or as to the weight and credibility of the evidence offered.\n2. Homicide \u00a7 21.7\u2014 second degree murder \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of second degree murder where it tended to show that defendant intentionally inflicted a wound with a deadly weapon which caused deceased\u2019s death.\n3. Criminal Law \u00a7 162.6\u2014 evidence competent in part \u2014 general objection\nThe trial court did not err in overruling defendant\u2019s general objection to a witness\u2019s testimony concerning a telephone conversation with defendant where all of the testimony to which defendant objected was not inadmissible since a substantial portion of it had been previously admitted without objection, and defendant failed to specify the portion of the evidence which was objectionable.\n4. Homicide \u00a7 19.1\u2014 State\u2019s rebuttal of evidence of deceased\u2019s character for violence \u2014 waiver of objection\nThe trial court in a homicide prosecution did not err in instructing the jury that the State could rebut defendant\u2019s evidence of deceased\u2019s character for violence by evidence of the good character of deceased for peace and quiet, and defendant will not be granted a new trial because the State presented evidence of deceased\u2019s good character and evidence that he was neither a dangerous nor violent man where defendant failed to object at the time the evidence was offered.\n5. Criminal Law \u00a7\u00a7 74.1, 75\u2014 confession \u2014instructions \u2014surrounding circumstances \u2014 consideration as whole\nThe trial court did not err in instructing the jury that, if it found defendant made a pretrial statement to an officer, it should consider the circumstances under which it was made in determining whether it was truthful and the weight to be given it, or in failing to instruct the jury that the whole of a confession must be taken together, considering those portions favorable as well as those portions against the defendant.\nJustice Britt took no part in the consideration or decision of this case.\nAPPEAL by defendant pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals, reported in 35 N.C. App. 328, 241 S.E. 2d 365, finding no error in the trial before Small, J., at the 27 June 1977 Criminal Session of Martin County Superior Court.\nDefendant was charged in a bill of indictment with the first degree murder of Kenneth Harris. The State elected to seek no greater verdict than second degree murder. Defendant entered a plea of not guilty.\nWe summarize the evidence presented at trial.\nOn the morning of 22 November 1976, defendant and four other men were deer hunting on a rural dirt road in Martin County. Shortly before noon, defendant was sitting in his truck which was parked on the left side of the road. One of his hunting companions was in the truck with him and the others were standing nearby. The deceased, Kenneth Harris, drove up and parked his truck in the middle of the road near the front of defendant\u2019s truck. Harris left his truck and, without speaking to anyone, went directly to the driver\u2019s side of defendant\u2019s truck. The driver\u2019s door was closed, but the window was open. Defendant called Harris \u201cpretty boy,\u201d and Harris called defendant an \u201cugly s.o.b.\u201d Harris reached through the window and grabbed defendant\u2019s shoulders and throat. A scuffle ensued during which the truck door was opened, and defendant was pulled from the truck. As he was being pulled from the truck, defendant seized a .22 Derringer pistol from the seat of the truck. He fell or was thrown to the ground, and upon hitting the ground, he fired a shot which struck Harris. Defendant asked his companions to call the rescue squad and then proceeded to the sheriff\u2019s department where he gave a statement admitting that he had shot Harris with the .22 caliber Derringer.\nIt was stipulated that the deceased died as a result of a gunshot wound inflicted by defendant.\nDeceased\u2019s wife testified that sometime during the month before the shooting, defendant called their home and, upon being told that deceased could not come to the phone, told Mrs. Harris to tell deceased that he would hunt on land deceased was farming anytime he pleased, and, furthermore, he had something for deceased. Defendant admitted making the telephone call but testified that he called only to inquire of deceased if it would be all right for him to hunt in the area and that Mrs. Harris told him to \u201cgo to hell\u201d and hung up.\nDefendant testified that he was aware of Harris\u2019s reputation as a dangerous man, and he shot Harris because he knew he would be hurt if he did not stop him. On cross-examination, defendant stated that he had had no previous trouble with Harris although Harris had told him to keep his dogs out of his fields. He admitted that Harris\u2019s actions made him mad and that he shot him in the chest. Defendant further explained that he kept the pistol in his truck because he often carried money between his home and his store.\nTwo of defendant\u2019s hunting companions testified to hearing complaints and threats passed between Harris and defendant several weeks prior to the shooting. Five witnesses testified that Harris had a bad reputation in the community for being a dangerous and violent man. Six witnesses testified as to defendant\u2019s general good character and reputation in the community.\nThe State presented evidence on rebuttal tending to show that Harris\u2019s general character and reputation in the community was good and that he was neither a dangerous nor violent man. There was also evidence that Harris at the time of his death was 39 years of age, was approximately six feet tall and weighed about 200 pounds, and that defendant was 42 years of age, was five feet eight inches tall and weighed 195 pounds.\nThe court instructed the jury that they could return a verdict of guilty of second degree murder, guilty of manslaughter or not guilty. The jury returned a verdict of guilty of manslaughter, and defendant was sentenced to a prison term of eighteen years. He appealed to the Court of Appeals which found no error. Judge Webb dissented.\nRufus h. Edmisten, Attorney General, by Kaye R. Webb, Associate Attorney, for the State.\nW. B. Carter and Clarence W. Griffin, attorneys for defendant appellant." }, "file_name": "0066-01", "first_page_order": 90, "last_page_order": 98 }