Opinion
Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Gerald F. White, Raleigh, Member of the Staff, for the State.
Taylors&s Mitchell, Raleigh, for defendant, appellant.
ERVIN, Justice.
The defendant makes these assertions by his assignments of error:
1. The trial judge erred in refusing the motion of the accused for a compulsory nonsuit on the charge of carrying a concealed weapon.
2. The trial judge erred in his charge by giving the jury this information: 'The defendant is being tried upon two warrants first tried in the Recorder's Court of Franklin County.'
3. The trial judge erred in his charge by failing to instruct the jury as to the law governing the effect which the petit jurors may give to evidence of the previous good character of an accused in a criminal action. 4. The trial judge erred in his charge by unduly emphasizing the contentions of the State.
We consider the assignments of error in the order in which they are stated.
The essential elements of the statutory crime of carrying a deadly weapon are these: (1) The accused must be off his own premises; (2) he must carry a deadly weapon; (3) the weapon must be concealed about his person. G.S. § 14-269; State v. Sauls, 199 N.C. 193, 154 S.E. 28. Counsel for the defense concede with commendable candor that the State's evidence is sufficient to establish that the defendant carried a deadly weapon, i. e., a pistol, about his person when off his own premises. They stressfully contend, however, that all of the State's evidence indicates that the pistol was not concealed at any time, and that the charge of carrying a concealed weapon ought to have been involuntarily nonsuited in the court below on that ground. We are unable to agree. The State's evidence is to the effect that the pistol was hidden from the observation of persons who were in full view of the defendant and near enough to him to see it if it were not concealed. This evidence warrants the inference that the pistol was concealed. 68 C.J., Weapons, section 27.
The defendant would not be advantaged in any practical way on the present record by the refusal of the trial judge to nonsuit the charge of carrying a concealed weapon even if he could sustain his contention that the State's evidence does not support that charge. The sentences on the two charges are concurrent and equal, and the sufficiency of the State's evidence to support the charge of assault is neither questioned nor questionable. State v. Hicks, 233 N.C. 511, 64 S.E.2d 871.
The statute now incorporated in G.S. § 15-177.1 provides that 'in all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced'. State v. Meadows, 234 N.C. 657, 68 S.E.2d 406, 408. The defendant asserts that the trial judge substantially impaired his statutory right to have the charges against him tried anew and de novo in the superior court without prejudice from the former proceedings of the recorder's court by informing the jury that the defendant was 'being tried upon two warrants first tried in the Recorder's Court of Franklin County.'
It would have been well had the trial judge refrained from any reference to any proceeding of the recorder's court. We are nevertheless at a loss to comprehend how the defendant could have suffered any harm from the naked statement of the trial judge that the charges embraced in the warrants had been first tried in the recorder's court. The jury was given no inkling of what happened in the recorder's court. Moreover, the trial judge instructed the petit jurors in most understandable words that the defendant was presumed to be innocent of both charges, and that they could not convict the defendant of either charge unless they were satisfied beyond a reasonable doubt from the evidence produced before them that he was guilty of such charge.
Where the accused in a criminal action testifies as a witness in his own behalf and also produces evidence tending to show that his general character in the community in which he resides or is known is good, he is entitled to have the petit jury consider the evidence relating to his general character for whatever it is worth both as corroborative evidence tending to confirm his credibility as a witness and as substantive evidence tending to prove his innocence on the issue of guilt or innocence. State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867; State v. Moore, 185 N.C. 637, 116 S.E. 161. The trial judge did not err in his charge by failing to explain this rule of law to the jury. The only testimony at the trial bearing any possible relationship to the character of the defendant was that elicited by his counsel on the cross-examinations of the State's witnesses Bullock, Dement, and Joyner. Bullock deposed 'I took him to be a nice boy'; Dement stated 'as far as I know, he doesn't have a record or reputation of carrying a gun or pistol'; and Joyner testified 'so far as I know he does not have any record for carrying a gun or having any trouble.' These bits of testimony were not equivalent to evidence of the general character of the defendant in the community in which he resided or was known. State v. Pearson, 181 N.C. 588, 107 S.E. 305; State v. Laxton, 76 N.C. 216. Since there was no evidence at the trial tending to show the general character of the defendant, it would have been inappropriate for the trial judge to have instructed the jury in respect to the rule of law under present scrutiny. 'The court is not required to instruct on academic propositions of law which have no substantial relation to the case.' State v. Durham, 201 N.C. 724, 161 S.E. 398, 403.
The ancient statute embodied in G.S. § 1-180 was amended by Chapter 107 of the 1949 Session Laws so as to require the trial judge to give equal stress to the contentions of the State and the accused in his charge to the petit jury in a criminal action. The defendant insists that the trial judge in the instant case offended this statutory requirement by unduly emphasizing the contentions of the prosecution.
This criticism is not merited. When the charge is read as a whole, it is manifest that the able and experienced trial judge stated the evidence accurately, stressed the contentions of the parties equally, and declared and explained the law correctly.
For the reasons given, there is in law
No error.