State v. Wike , 32 N.C. App. 475 ( 1977 )

VAUGHN, Judge.

Defendant testified that the shooting took place on his property. The State did not introduce evidence to contradict that testimony. Nevertheless, defendant brings forward numerous exceptions because the judge would not allow him, in effect, to turn this criminal action into an action to prove his title to the lands where the shooting took place. The judge’s rulings were correct and defendant’s exceptions are without merit. The judge also properly instructed the jury on the law as it applies to one who, being free from fault, is attacked on his own property.

Defendant contends that the judge did not “instruct the jury concerning the law of accidental killing as it applies to self-defense.” The exceptions relating to this contention are not sustained. The judge fully declared and explained the law arising on the evidence in the case. Among other things, he told the jury that if the defendant “acted properly in self-defense, he would not be guilty of any offense on which the court has or will instruct you.” The court further instructed the jury that if Hines died by accident, without wrongful purpose or criminal negligence on the part of defendant, defendant would not be guilty of a crime in connection with his death.

In his sixth assignment of error, defendant argues that the court improperly restricted his cross-examination of Sted-man Hines’ widow. On direct examination, Mrs. Hines, without objection, testified that her husband neither owned nor possessed a firearm on the date of the shootings. The couple had been married for 34 years. On cross-examination she was asked whether she and her husband lived together continuously for the six months immediately preceding that day. She responded in the affirmative. Defendant then asked her whether she and her “husband were having domestic problems during that time.” The sustaining of the State’s objection to that question is defendant’s basis of the assignment of error. We hold that the trial judge was correct when he concluded that the question was improper.

Defendant also attempted to offer evidence of a conversation that took place in the courthouse between Hines and another lawyer in connection with the civil litigation involving defendant and Thomas Wike. Defendant contends that the evidence was not properly excluded by the “Dead Man’s Statute.” Without regard to whether it should have been excluded under that statute, it suffices to say that the subject of the conversation was totally irrelevant to the trial of this defendant and not admissible under any theory.

Defendant’s sister (as did one of his brothers) testified for the State. The sister testified that she talked with defendant a few days before the killings. Defendant told her that Thomas Wike was “tearing up what he had.” Defendant told her that he would, “do like Dallas” and “that would keep him off.” Dallas is another brother of defendant. The sister then explained, without objection, that Dallas had killed another brother, Joe. Defendant does not argue that evidence of defendant’s prior threats are inadmissible. He argues, instead, that the testimony should not have been admitted because it “does not qualify as a threat on the part of the Defendant.” The weight to be given the evidence is for the jury. The jury could reasonably infer that when defendant said he was going to “do like Dallas” he was suggesting that he was going to kill his brother, as did Dallas. The assignment of error is overruled.

We have considered all of the exceptions brought forward and the argument on appeal. We find no prejudicial error.

No error.

Judges Hedrick and Clark concur.