State v. Huff , 20 N.C. App. 630 ( 1974 )

HEDRICK, Judge.

By his first two assignments of error the defendant contends that the trial court erred when it permitted the solicitor to ask Officers Garaventa and Williams if they had an opinion as to whether the defendant was under the influence of an intoxicating beverage. It is well-settled in this jurisdiction that a lay witness may give his opinion as to whether a person was under the influence of an intoxicating beverage provided the witness was afforded an opportunity to observe him. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971); State v. Warren, 236 N.C. 358, 72 S.E. 2d 763 (1952); State v. Harris, 213 N.C. 648, 197 S.E. 142 (1938). In the instant case the questions asked by the solicitor were proper in form and not leading questions as suggested by defendant. These questions established a proper foundaton for the opinion testimony offered by the two witnesses as they included detailed accounts of both witnesses’ opportunities to observe defendant. These assignments of error are not sustained.

Defendant’s assignments of error 4, 5, and 6 are directed to certain portions of the trial court’s charge to the jury. We have carefully examined each exception upon which these assignments of error are based and find that each challenged instruction is lifted out of context. The charge when construed contextually as a whole is fair and free from prejudicial error. State v. Lee, 282 N.C. 566, 193 S.E. 2d 705 (1972); Lewis v. Barnhill, 267 N.C. 457, 148 S.E. 2d 536 (1966); 7 Strong, N. C. Index 2d, Trial, § 33 at p. 330 (1968).

Citing State v. McKissick, 268 N.C. 411, 150 S.E. 2d 767 (1966) and State v. Roberts, 270 N.C. 449, 154 S.E. 2d 536 (1967), the defendant maintains that the trial court erred in its additional instructions to the jury which instructions were given as a result of the jury deliberating for several hours without reaching a verdict. In substance these additional instructions admonished the jurors that the court did not wish them to do anything against their consciences; instructing the jury that if they were unable to reach an unanimous verdict then the case would be recalendared for trial at some future date; and informed the jurors of the proper function of the jury. It is our opinion that the cases cited by defendant are readily distinguishable from the present case and that the additional instructions in this case are similar to those approved in other decisions of our Supreme Court. See, In re Will of Hall, 252 N.C. 70, 113 S.E. 2d 1 (1960); State v. Bailey, 280 N.C. 264, 185 S.E. 2d 683 (1971), cert. denied 409 U.S. 948; Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E. 2d 296 (1968). This assignment of error is overruled.

In defendant’s trial in the Superior Court we find

No error.

Judges Campbell and Baley concur.