State v. Terry , 13 N.C. App. 355 ( 1971 )

CAMPBELL, Judge.

The defendant, by appropriate assignments of error, raises three questions on appeal.

1. Did the trial court err in denying defendant’s motion to dismiss at the close of the State’s evidence?

2. Did the trial court err in its instructions on the consideration of prior inconsistent statements by the witness, Richard Covington?

3. Did the trial court err in its instructions to the jury on the offense of involuntary manslaughter?

In his first argument defendant contends that there was insufficient evidence of defendant’s guilt to go to the jury. The defendant submits that the only evidence linking him with the death of deceased was the testimony of Richard Covington. It is argued that Covington’s testimony at the preliminary hearing was inconsistent with his testimony at the trial and that this inconsistency bears directly on the weight of the State’s evidence. On this basis the defendant contends that there was not sufficient evidence to go to the jury.

A clear statement of the law on this point was given by the North Carolina Supreme Court in State v. Bowman, 232 N.C. 374, 61 S.E. 2d 107 (1950).

“ ... In ruling on such motion, [motion to dismiss] the court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false, and what it proves if it be true are matters for the jury. ...”

Viewing the testimony of Richard Covington in the light most favorable to the State and assuming it to be true, there is ample evidence to go to the jury. The prior inconsistent statements of the witness do not have the effect of nullifying his testimony, but are simply for the consideration of the jury in determining the credibility of the witness. Stansbury, N.C. Evidence 2d, § 46, p. 90.

We find no error in the trial court’s denial of defendant’s motion to dismiss.

The defendant next objects to the following segment of the trial court’s charge to the jury on the effect of prior inconsistent statements:

“Evidence has been received as corroboration tending to show that at some earlier time, the witness, Richard Louis Covington, made a statement consistent with his testimony at this trial. You must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made, that it is consistent with the testimony of the witness at this trial, you can then consider this together with all the other facts and circumstances bearing upon the witness’ truthfulness in deciding whether to believe or disbelieve his testimony at this trial. Evidence has been received tending to show that at an earlier time the witness, Richard Louis Covington, made a statement which conflicts with his testimony at this trial. You must not consider such earlier statements as the truth of what was said at that earlier time, because it was not made under oath at this trial. If you believe that such earlier statements were made, and it does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances as bearing upon the witness’ truthfulness, in deciding whether you believe or disbelieve his testimony at this trial. ...”

The defendant contends that this charge is ambiguous and contradictory. We do not agree.

The trial court has correctly charged that the prior statements of the witness are not to be treated as substantive proof, but that they could be considered as bearing on the witness’ credibility. This is a correct statement of the legal effect of prior consistent and inconsistent statements. Stansbury, N.C. Evidence, 2d Ed., § 46, p. 90 and § 52, pp. 105-107. The trial court’s charge in respect to this question is entirely proper. This assignment of error is overruled.

The defendant’s final assignment of error is to the trial court’s charge on involuntary manslaughter. We have carefully examined the trial court’s charge on the offense of manslaughter. Taken as a whole, the charge is a fair and accurate presentation of the law. When the charge presents the law fairly and accurately, there is no ground for reversal even though some of the expressions, when standing alone, might be regarded as erroneous. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966).

In the entire trial we find

No error.

Judges Morris and Parker concur.