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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 that time a warrant on file in the police department for the arrest of Ervin Mercer.

The court admitted, for the purpose of illustrating the testimony of Detective Smith, certain photographs and bullets. Defendant contends this was prejudicial error. He contends the photographs and bullets were inflammatory. He does not contend these exhibits were not accurate. The photographs were used to illustrate the testimony of Detective Smith as to the location of the bodies in the house, the location of the wounds, the condition of the front door to the house, etc. The court properly instructed the jury as to the exhibits. Their admission was not prejudicial error. State v. Porth, 269 N.C. 329, 153 S.E.2d 10. In that case the Court quoted, with approval, Stansbury, N.C. Evidence 2d, ยง 34, as follows: "If a photograph is relevant and material, the fact that it is gory or gruesome . . . will not alone render it inadmissible."

The defendant earnestly contends that he should have been permitted to testify as to whether in his own opinion he himself knew right from wrong while he was in the house where the killings were done and whether he had sufficient mind to know what he did and the consequences of his act. In support of his contention, defendant relies on State v. Nall, 211 N.C. 61, 188 S.E. 637. There, the Court held admissible defendant's testimony that eight years prior to the time of his testimony he had been hit on the head with a baseball bat and twelve years prior he had been hit on the head with an axe and that he had had measles settle in his head and that these had had a bad effect on his mind; that he sometimes lost his "sense of recollection" and could not remember what he had done when his mind was gone away from him. The testimony sought to be admitted here is quite different. Here, the defendant had already testified that he remembered going in the house and remembered standing on the porch hearing the gun clicking at his head, but remembered nothing in between. It was during this time the killings occurred and it was this period of time as to which defendant wished to testify that in his opinion he did not know right from wrong. We think the evidence was properly excluded.

We have carefully examined the remaining assignments of error addressed to rulings of the court as to admission or exclusion of testimony, ...


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