State v. Locklear , 7 N.C. App. 375 ( 1970 )

BsoCK, J.

Defendant assigns as error that a State’s witness was allowed to testify over objection that the blade of the knife, identifiéd as the knife borrowed by defendant and found behind the seat of the car where defendant was riding, had small dark streaks running up and down the blade and the dark streaks smelled like rubber. This assignment of error is overruled.

Defendant assigns as error that a deputy sheriff was allowed to testify as to statements made to him by State’s witnesses Jacobs and Lyngale when the officer’s testimony was not in fact corroborative.

The witnesses Jacobs and Lyngale, who were with defendant on the night of the alleged offenses, testified for the State and were extensively cross-examined by counsel for defendant. Later the State offered the deputy sheriff’s testimony to show prior consistent statements by Jacobs and Lyngale with respect to what defendant had told them.

The witness Lyngale testified that defendant had told them that “. . . he had cut eight tires, didn’t say police cars, or what car. He just told us not to repeat anything, not to say anything, if anything happened.” The deputy sheriff testified that the witness Lyn-gale had told him on the day after the offense “. . . that Carson Locklear told them he cut the tires and they better not say anything about it.”

The witness Jacobs testified: “Carson Locklear, Jr., said that some tires had been cut at the fairgrounds.” The deputy sheriff testified that the witness Jacobs had told him, on the day after the offense, that “. . . Carson told that night, about getting the knife, and said he cut the tires; told them they had better not say anything about it.”

Obviously there is a variation between the testimony of the witness Jacobs and the statement ascribed to him by the deputy sheriff. However, the testimony of the witness Lyngale was clearly corroborated by the statement ascribed to him by the deputy sheriff. In each instance before the deputy sheriff was allowed to testify the trial judge gave proper instructions to the jury limiting their consideration of the testimony to corroborative purposes. There was no motion to strike"'-the testimony of the deputy as to the statement made by Jacobs until after the testimony of the statement made by Lyngale. Then the motion to strike was addressed to the entire testimony concerning both statements. Such a motion was properly overruled by the trial judge because the testimony relating to the statement by Lyngale was clearly corroborative.

We must assume that the jurors were intelligent; that they understood and abided by the trial judge’s clear instructions, and that they could tell that a variation existed between the testimony of the witness-Jacobs and the statement ascribed to him by the deputy. Also the statement ascribed to Jacobs by the deputy was merely cumulative of the testimony of Lyngale and does not appear to create such prejudice as to warrant a new trial. As stated by Parker, C.J., in State v. Temple, 269 N.C. 57, 152 S.E. 2d 206, “It is thoroughly established in our decisions that the admission of evidence which is not prejudicial to a defendant does not entitle him to a new trial. To warrant a new trial it should be made to appear by defendant that the admission of the evidence complained of was material and prejudicial to defendant’s rights and that a different result would have likely ensued if the evidence had been excluded.”

G.S. 14-160, under which defendant was convicted, was amended effective 1 October 1969; but, since defendant’s trial, conviction and sentence occurred prior thereto, he is not affected by the amendment.

No error.

Beitt and GRAHAM, JJ., concur.