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State v. Mercer

Filed: August 14, 1968.

STATE
v.
ERVIN MERCER



Appeal by defendant from Parker, J., February 1968 Criminal Session, Wilson Superior Court.

Morris, J. Campbell and Britt, JJ., concur.

Morris

Defendant has submitted this appeal under Rule 19(d)(2) but has failed to comply therewith in that he has not attached any appendix to his brief as required. Nevertheless, we have engaged in a voyage of discovery and find no prejudicial error.

Assignments of error Nos. 1, 2, 3, 4, 6, 7, 8, 9 and 10 are all addressed to the admission or exclusion of evidence.

The court properly allowed a motion to strike the answer of Mrs. Owens, "Well I don't think she had ever done him right." The witness had been asked on cross-examination by counsel for defendant if she knew why defendant did not stay with his wife. She answered that his wife didn't want him to. The quoted answer was given in response to a question asking how long that situation had existed. The answer was obviously not responsive; it was a matter of opinion for which no foundation had been laid, and was hearsay.

The testimony of the witness Mrs. Owens with respect to the manner in which defendant had stated he wished to be buried, the testimony of defendant as to the localities of his overseas service for 15 years, the testimony of defendant with respect to his previous marriage and the circumstances of its dissolution was all irrelevant and properly excluded.

The admission of the evidence of Officer Hayes, the arresting officer, to the effect that at the time he went to defendant's brother's house in response to a call to go there and pick up Ervin Mercer he was aware that a felony had been committed, that Myrtle Mercer

had been murdered, and that he had reasonable grounds to believe who had committed the felony was not prejudicial error as an invasion of the province of the jury. The witness was the arresting officer who was explaining the basis for his arrest of defendant. Immediately following the above testimony was testimony that there was at ...


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