State v. Mize , 19 N.C. App. 663 ( 1973 )

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199 S.E.2d 729 (1973) 19 N.C. App. 663
STATE of North Carolina
v.
Douglas R. (Dickey) MIZE.
No. 7315SC550.
Court of Appeals of North Carolina.
October 24, 1973.
*730 Atty. Gen. Robert Morgan by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

John D. Xanthos, Burlington, for defendant appellant.

BRITT, Judge.

Defendant combines his assignments of error 2 and 9 and states the question presented by the assignments thusly: "Did the court err in not allowing the defendant to establish prosecuting witness' reputation as a combatant and instructing jury to disregard answer?"

The assignments of error relate to exceptions 4, 5 and 15. Exceptions 4 and 5 relate to defendant's cross-examination of Covert when the court sustained the State's objections to questions attempting to elicit evidence to the effect that Covert had beaten defendant's wife several times and had whipped his brother. The record does not show what the answers to the questions would have been had the witness been allowed to answer. Therefore, we cannot know whether the rulings were prejudicial. The burden is on appellant not only to show error but prejudicial error. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972).

Exception 15 relates to defendant's testimony on direct examination. Defendant was asked if he knew the reputation of Covert "with regard to fighting, and so forth." Defendant answered: "He previously beat my wife up and her two brothers come to his apartment and he broke one of them's arms and the police came up there and settled the whole thing." The court thereupon instructed the jury to disregard the answer as it was not responsive to the question and advised defendant that the question was whether he knew Covert's reputation and that specific instances were not responsive to that question. Defendant then answered "his reputation is pretty rough."

Our Supreme Court has held that where defendant in a homicide prosecution pleads self-defense, he is entitled to show, for the purpose of explaining and establishing defendant's reasonable apprehension when deceased advanced toward him, the character of the deceased as a violent and dangerous man, and may testify as to incidents of violence in altercations between the deceased and himself, and may also testify as to specific acts of violence which occurred in defendant's presence or of which he had knowledge in altercations between the deceased and third parties. State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967). The same rules apply in cases of assault and battery, both criminal and *731 civil. 1 Stansbury's N.C. Evidence (Brandis Revision), § 106, p. 330. In the instant case there was no showing that any altercation between Covert and defendant's wife or her brothers occurred in defendant's presence or that he had personal knowledge of any such altercation. The court allowed defendant to testify as to Covert's reputation "for fighting." We find no prejudicial error in the court's action.

By other assignments of error, defendant contends the court erred in expressing opinions to the jury in violation of G.S. § 1-180. We have carefully considered each of these assignments but conclude that any error committed was not prejudicial.

By his remaining assignments of error, defendant contends the court erred in its instructions to the jury. We have carefully reviewed the instructions and conclude that they are free from prejudicial error.

No error.

MORRIS and HEDRICK, JJ., concur.