State v. Cunningham , 34 N.C. App. 442 ( 1977 )

MORRIS, Judge.

Defendant’s first assignment of error is directed to the admission of a photograph of the deceased into evidence over his objection. He argues that the court should have granted the defendant a continuance so that the photograph could be used by the defendant to prepare his defense. The defendant claimed that the State did not fully comply with a pretrial discovery order by not giving a copy of the photograph to the defendant until the day of the trial.

Even a cursory reading of the record reveals that at no time during the discussion with respect to the photograph did defendant request a continuance, nor does he argue that it was improper for the court to deny his motion to dismiss. This Court is limited on appeal to matters raised at trial and properly presented on appeal. We cannot consider the failure of the trial court to allow a continuance when the defendant made no such motion to the judge below. State v. Taylor, 240 N.C. 117, 80 S.E. 2d 917 (1954); State v. White, 24 N.C. App. 318, 210 S.E. 2d 261 (1974). This assignment of error is overruled.

The defendant’s second argument, based upon assignments of error Nos. 7 and 9, is directed to the expert and opinion testimony of Drs. Wood and Overton. He contends that Dr. Wood invaded the province of the jury by failing to phrase his answer in terms of what “could or might have” been the cause of death, and he contends that the hypothetical questions posed to the doctors were improper in that they assumed that the defendant had inflicted the stab wounds upon which the doctors relied in formulating their opinions as to the cause of death. Below is the question and answer of Dr. Wood to which defendant excepted:

Q. Dr. Wood, if the jury should find beyond a reasonable doubt that on the 28th day of June, 1976 at approximately 8:30 or 9:00 p.m., that Charles Anthony received multiple stab wounds in Rudean’s Grill; that upon the next morning at 9:30 a.m. he was in Charlotte Memorial Hospital, and remained there in critical condition, unable to speak, until his expiration, until he died, do you have an opinion, based upon those facts, and your autopsy, as to what could have, or might have, caused his death?

Mr. PAWLOWSKI: I object, Your Honor, for the record.

COURT: Overruled. EXCEPTION No. 7

My opinion is that Charles Anthony died as a result of stab wounds, complications of stab wounds.”

The question was properly phrased for a hypothetical question and it is Dr. Wood’s answer which the defendant contends was improperly phrased and as such, unresponsive to the question asked. The question asked for an opinion as to what “could, or might have caused the death”, and the answer was phrased as a conclusory statement. The rule is that when the question asked the witness is competent, exception to his answer when incompetent in part, should be taken by a motion to strike out the part that was objectionable. State v. Patterson, 284 N.C. 190, 200 S.E. 2d 16 (1973). The objection taken to an unobjectionable question is not sufficient to raise an issue on appeal arising as a result of an improper answer. State v. Gooding, 196 N.C. 710, 146 S.E. 806 (1929); Highway Comm. v. Black, 239 N.C. 198, 79 S.E. 2d 778 (1954); State v. Wilson, 16 N.C. App. 307, 192 S.E. 2d 72 (1972). The defendant did not move to strike the answer and cannot take exception to it at this point.

The defendant also contends that the questions posed to the two medical witnesses were improperly phrased because they allowed the doctors to assume that the wounds observed as the cause of death in the autopsy were the same wounds inflicted upon the deceased in Rudean’s Restaurant. The defendant argues that there was an intervening period of two hours between the occurrence of the stabbing incident at Rudean’s and the discovery of the deceased in the empty bus, a period during which the deceased might have received other knife wounds. A hypothetical question should: (1) Include only such facts as are in evidence or such as the jury will be justified in inferring from the evidence; (2) include all of the material facts which will be necessary to enable the witness to form a satisfactory opinion. 1 Stansbury, N.C. Evidence 2d, § 137, pp. 452, 453 (Brandis Rev. 1973).

There wás substantial evidence that the defendant repeatedly stabbed the deceased in the chest area and that blood immediately began to soak the front of the deceased’s shirt. The jury would be justified in concluding that the wound in the neck, attributed by the doctors as the cause of death, was one of the wounds inflicted by the defendant in Rudean’s Restaurant. Defendant introduced no evidence of an intervening agent which might have caused the wounds of the deceased. The hypothetical questions were proper in form as they were based on the evidence presented. It is clear that the jury was to decide whether the wounds forming the basis of the doctors’ opinions were a result of the incident at Rudean’s Restaurant, and the hypothetical question posed would not have confused the jury on this point. This assignment of error is overruled.

The defendant’s last two assignments of error presented are directed to the failure of the court to instruct the jury on the lesser offense of assault with a deadly weapon with intent to kill, arguing that such an instruction was necessary because the defendant contended that an intervening agency was the cause of the death. The purposes of the charge are the clarification of issues, the elimination of extraneous matters, and the application of law arising from the evidence presented. State v. Jackson, 228 N.C. 656, 46 S.E. 2d 858 (1948). It is error for the court to charge the jury on a principle of law which does not arise from the evidence. State v. Duncan, 264 N.C. 123, 141 S.E. 2d 23 (1965); State v. Gurley, 257 N.C. 270, 125 S.E. 2d 445 (1962). The defendant presented no evidence of an intervening agency inflicting wounds upon the deceased and was not entitled to such an instruction. It is true that the witnesses to the stabbing did not see the deceased drop dead on the spot, that the deceased was not seen for a brief period of time after the stabbing before he was discovered by a policeman, and that the defendant did not die until a few days after the stabbing. The State’s evidence relating to the cause of death was, therefore, circumstantial. The defendant requested and received an instruction regarding proof of death by circumstantial evidence. To this the defendant was entitled. Absent any evidence of an intervening agent as the cause of death, the defendant was not entitled to an instruction on intervening agency, or assault with a deadly weapon with intent to kill.

No error.

Judges Vaughn and Clark concur.