State v. Fowler , 13 N.C. App. 116 ( 1971 )

GRAHAM, Judge.

On cross-examination defendant’s counsel asked the State’s witness, Moses Allen, “[w]hen and where were you and Martha Ann married?” The witness answered, “In Conway, South Carolina.”

No objection or motion to strike this evidence was made and defendant offered no evidence to the contrary. Defendant now argues in his brief, however, that this statement constituted “perjured testimony” and that the court erred in permitting it. He attempts to support this argument with two letters included in his brief as exhibits. The first letter, purportedly from defendant to the Judge of Probate in Conway, South Carolina, states in pertinent part:

“Sir is it true or falst about a Marrage was Soppose to taken Place there Betwen the man Name Mases Allen an Martha Ann Bath of Wilmington N. C. the year 1968. or 1969. Bath Nigroes Race Piase. May I here Froom you?”

The second letter purports to be the reply of the Probate Judge and it provides in pertinent part:

“We have checked our records from June, 1967 through June, 1970 and do not find where we have issued this Marriage License. If there is another date that we could check for you we will be glad to do so.”

Needless to say, these letters are not a part of the record on appeal and cannot be considered. Moreover, even if the letters were properly incorporated in a motion for a new trial on the ground of newly discovered evidence, defendant would be entitled to no relief. The fact that the parties may not have been married in Conway, South Carolina, as stated by the witness, would be immaterial and irrelevant in this prosecution for murder. Furthermore, a new trial will not be awarded where, as here, the newly discovered evidence does nothing more than tend to contradict, discredit or impeach a former witness, or where it fails to show that upon a new trial a different result would probably be reached. State v. Casey, 201 N.C. 620, 161 S.E. 81.

In his second assignment of error, defendant challenges a statement made by the trial judge while defendant was answering a question asked on cross-examination. The court stated:

“Just answer yes or no. If you want to make a speech to the jury you can do that later. You just answer his question. You can make your speech later if you want to. You or your attorney or both if you would like to.”

The judge’s statement came during an unresponsive answer in which defendant appears to have started expounding at length as to why he was telling the truth. While we do not approve of the language used by the trial judge, we feel that under the circumstances his interruption of defendant’s testimony was a proper exercise of his discretionary power to supervise the trial and that no prejudice resulted to defendant. A remark by the court is ordinarily held not prejudicial when it amounts to no more than a ruling on a question or where it is made to expedite the trial. State v. Hooks, 228 N.C. 689, 47 S.E. 2d 234; State v. Cox, 6 N.C. App. 18, 169 S.E. 2d 134.

In his charge the trial judge twice reminded the jury that although the bill of indictment charged murder in the first degree, the State had elected to try defendant for murder in the second degree, and that the charge of first degree murder was not to be considered. Defendant assigns this as error, contending that it amounted to a comment on the evidence to his prejudice. This assignment of error is overruled. See State v. Ray, 12 N.C. App. 646, 184 S.E. 2d 391.

Finally, defendant assigns as error the judge’s recapitulation of his testimony, which included defendant’s statement that he had “various law violations” in the past. There is no contention that the judge did not correctly recall this portion of defendant’s testimony or that defendant’s testimony was misstated by the court in any way. Rather, defendant contends that it was incompetent evidence and should not have been repeated by the court. Suffice to say, the proper manner to . have raised this question would have been through an objection at the time defendant testified. No objection to any of defendant’s testimony appears in the record.

We have reviewed the entire record and find that defendant had a fair trial free from prejudicial error.

No error.

Chief Judge Mallard and Judge Hedrick concur.