No. 76.

185 S.E.2d 137 (1971)

280 N.C. 67

STATE of North Carolina v. Claude Elbert SANDERS.

Supreme Court of North Carolina.

December 15, 1971.

Attorney(s) appearing for the Case

Robert Morgan, Atty. Gen. by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Robert E. Gaines, L. B. Hollowell, Jr. and Mark Galloway, Gastonia, for defendant appellant.

HIGGINS, Justice.

The defendant assigns as error the failure of the court to sustain his objection to the evidence of Dr. Kelman who performed the autopsy. The court found Dr. Kelman to be a medical expert and a qualified pathologist. When the solicitor asked Dr. Kelman what he found to have been the cause of death, the defendant objected. Without ruling on the objection, the court reframed the question and the doctor answered that he found four bullet wounds in the body of I. J. Adams, one of which had passed entirely through the body. Three other bullets had penetrated from the back and lodged under the skin of the chest. Two of these bullets passed through his lungs causing massive hemorrhage and death.

Charles Currence, a witness to the shooting, testified the deceased was running away when the defendant fired the last four shots. He took I. J. to the hospital. He was dead on arrival.

The defendant objected to the court's question and to the testimony as to the cause of death. The court's question was clarifying. The answer of the doctor was material and competent. The objection is not sustained.

During the defendant's cross-examination, he testified the deceased was cutting him with a razor and he began shooting in self-defense. The solicitor on cross-examination asked him to remove his shirt and undershirt and show the jury any scars left as a result of the cuts. Defense counsel objected. The court overruled the objection and directed the defendant to comply with the solicitor's request. The State had offered evidence the deceased was unarmed. The defendant claims he was being cut with a razor-like instrument. The absence or presence of scars would be material on the defendant's plea of self-defense. The exception is not sustained.

The plaintiff placed his main reliance for a new trial on the defective condition of the stenographic report of the trial proceedings. The reporter's affidavit and the court's findings of fact disclose the reasons for the absence of the defendant's direct testimony and the court's charge. To be entitled to a new trial, surely the defendant and his counsel should suggest more than the failure of the record to show the exact words of his direct testimony. The defendant is alive and available. He is now represented by the two trial attorneys who placed him on the stand and conducted his direct examination. They should know whether the court excluded from the jury any of the defendant's material testimony. If so, they should be able to recall its substance and note it in the case on appeal. The erroneous exclusion of material evidence is, however, not even suggested. All that is claimed is that it is absent.

It is worthy of note in this connection that the defendant's cross-examination is reported in full. The admissions on cross-examination tend to show that the essentials of the State's evidence are not challenged by defense testimony. The defendant's own admissions would appear to be sufficient to take the case to the jury. The defendant has failed to show, or even allege, any error in the admission of evidence. While his direct testimony is not in the record, the jury heard all he said.

The only objection with respect to the charge is that the record of it is not in the hands of defense counsel. They heard the charge the judge gave. Both they and the judge are alive and available. Before a new trial should be ordered, certainly enough ought to be alleged to show that error was probably committed. If defense counsel even suspect error in the charge, they should set out in the record what the error is. If the solicitor does not object, theirs becomes the case on appeal. If he does object, the court could then settle the dispute. The appellate court would then have something tangible upon which to predicate a judgment. The material parts of a record proper do not include either the testimony of the witnesses or the charge of the court. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669.

After all, there is a presumption of regularity in the trial. In order to overcome that presumption it is necessary for matters constituting material and reversible error be made to appear in the case on appeal. Not even a suggestion of error appears in this record. The failure to include the court's charge is by no means fatal. State v. Tinsley, supra. There was no duty on the court to settle a case on appeal until a disagreement. Hall v. Hall, 235 N.C. 711, 71 S.E.2d 471.

The authorities cited by defendant are not applicable here. In State v. Huggins, 126 N.C. 1055, 35 S.E. 606, the defendants were convicted of murder in the second degree. The only question involved in the appeal was the sufficiency of the evidence to survive the State's motion to dismiss. In settling the case on appeal, the trial judge ordered that the entire testimony be made a part of the record. Thereafter the record containing all the testimony was lost and, of course, could not be included in the case on appeal. This Court ordered a new trial. There was no record at all before the Court. In State v. Parks, 107 N.C. 821, 12 S.E. 572, the case on appeal, exceptions were sent to the judge for settlement. However, the judge died and the record was lost. On certiorari this Court ordered a new trial. In State v. Powers, 10 N.C. 376, this Court said:

"The defendant has appealed from the judgment rendered against him, but no case is made up to enable this Court to judge whether the law has been duly administered; and we must, therefore, have inspected the record to decide on the legality of the judgment. But it appears from the certificate of the judge that a case presenting the points was intended to have been made up, but was prevented from his having lost the notes of the trial. Under these circumstances there is no other mode by which the justice of the case can be attained but by awarding a New trial."

There was no record at all before the Court.

In the instant case all parts of the record proper are before us. Hence it is our duty to examine it, and to take notice ex mero motu of any disclosed error or defect. Error otherwise than upon the face of the record must be made to appear and must be the subject of an assignment. The absence of the defendant's testimony and the court's charge is accounted for. Absent, also, are any claims or suggestions of error prejudicial to the defendant.

The State's evidence makes out a strong case. The defendant's admissions on cross-examination and the number of shots fired, three in the back, tend to rebut any claim of self-defense. While we do not have the record of defendant's direct testimony, the jury did hear and consider every word the defendant said on both direct and cross-examination.

In the trial, verdict and judgment, we find

No error.


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