State v. Brown , 13 N.C. App. 315 ( 1971 )

BRITT, Judge.

Defendant’s first assignment of error is to the denial of his motion for a change of venue or a special venire, on the grounds that the residents of the area were saturated with publicity about the attempted robbery and this awareness was fanned by their fear when there was an escape and a recapture of two escapees in prominent Lexington homes. The assignment of error is without merit.

“A motion for change of venue or for special venire, may be granted or denied in the discretion of the trial judge, and his decision in the exercise of such discretion is not reviewable here unless gross abuse is shown.” State v. Allen, 222 N.C. 145, 147, 22 S.E. 2d 233, 234 (1942). See State v. Scales, 242 N.C. 400, 87 S.E. 2d 916 (1955). There is nothing in the record indicating that any juror was unable to render a fair and impartial verdict and in the absence of such showing, no abuse of discretion is shown. State v. Brown, 271 N.C. 250, 156 S.E. 2d 272 (1967).

Defendant next assigns as error the court permitting the jury to examine two police photographs of defendant in the traditional photographic position of a criminal, there being one of the profile position and one of the full face. There was tape over the lower portion of the photographs to cover the criminal identification numbers. Defendant contends this placed his character before the jury when he at no time took the stand in his own defense. The photographs were offered for the purpose of illustrating or corroborating the testimony of Mrs. Carroll. In State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892 (1970) the court directly answered the question controlling this issue:

Defendant contends, however, that introduction of the ‘mug shot’ photograph of him tended to apprise the jury of the fact that he had been in trouble before, reflected unfavorably upon his character and suggested that he had been convicted of other crimes. Upon the facts before us defendant’s contention is unsound and cannot be sustained. Before the jury was allowed to see the photograph in question, the portions which might have been prejudicial to him, i.e., the name of the police department and the date, were covered by an evidence tag. This left only an ordinary photograph, which was offered and admitted for illustrative purposes bearing upon identification of defendant. The photograph was relevant and material on the question of identity and could not have been prejudicial in the sense suggested by defendant. There was nothing on it to connect defendant with previous criminal offenses ....

We therefore hold that the photograph, with inscription and date deleted, was properly admitted for illustrative purposes on the question of identity.

Defendant’s next assignment of error concerns the admission into evidence of a shotgun, allegedly found in the mobile home at which defendant was apprehended. The search was without a warrant or permission of the owner. A careful look at the record reveals that the shotgun was never admitted into evidence, but only marked as State’s Exhibit #3; when presented to Mrs. Carroll for identification, she could not identify the shotgun, thus it was never admitted into evidence. Since the gun was not admitted into evidence, we do not reach the question of defendant’s standing to object to the search.

Defendant contends that it was error to deny his motions for nonsuit interposed at the end of the State’s evidence and renewed at the close of all the evidence. It is well settled that on a motion for nonsuit, the evidence must be viewed in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. State v. Vincent, 278 N.C. 63, 178 S.E. 2d 608 (1971). Although the State’s case rested heavily on the testimony of one witness, this presented a question for the jury which was properly submitted to them.

Defendant contends the court erred in denying his motion to set aside the verdict as being contrary to the greater weight of the evidence. The ruling of the trial judge on this motion is not reviewable on appeal in the absence of a manifest abuse of discretion. State v. Massey, 273 N.C. 721, 161 S.E. 2d 103 (1968). There is no showing of abuse of discretion.

Defendant submitted other assignments of error which have been carefully reviewed but found to have no merit. He received a fair trial, free from prejudicial error.

No error.

Judges Brock and Vatjghn concur.