Appeal by defendant from Albright, Judge. Judgment entered 5 January 1979 in Superior Court, Surry County. Heard in the Court of Appeals 12 September 1979.
Arnold, Judge. Judges Webb and Wells concur.
Defendant first argues that the trial court committed prejudicial error in excluding portions of his sister's testimony. In the jury's absence, Corinne Sechrest testified that the morning before the robbery defendant came to borrow her car and "he said I am sick and I am feeling dizzy in my head and said I feel funny." He said that he was "smothering." Defendant offered this testimony as evidence of his mental state on the day of the crime. The trial court ruled that Ms. Sechrest could testify to what she observed that day, but not to what defendant told her. Before the jury, Ms. Sechrest then testified that when defendant came to borrow her car he "talked funny," and he said he was feeling "woozy and funny." We find no prejudicial error in the court's ruling, since Ms. Sechrest in fact testified to essentially all of defendant's declarations to her. "The exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import . . . ." 1 Strong's N.C. Index 3d, Appeal & Error § 49.2 at 315.
Defendant also assigns error to the charge to the jury on the issue of insanity. He contends that the issue of insanity was improperly submitted first, and that the trial court expressed an opinion on a question of fact, in violation of G.S. 15A-1222 and -1232.
The trial court began the instruction on insanity as a defense as follows:
Now members of the jury, as your first order of business in the course of your deliberation you will take up the issue of insanity and will consider that issue first. The issues have been reduced to a written form and the insanity issue reads as follows, the issue being separated into two parts. "1-A" reads as follows: Was the defendant on July 11, 1978, by reason of a defect of reason or disease of the mind incapable of knowing the nature and the quality of the acts which he is
charged with committing or if he did know this was he by reason of such defect or disease incapable of distinguishing between right and wrong in relation to such an act? "1-B" is, If so, is the defendant not guilty by reason of insanity?
As the Court indicated, members of the jury, you will consider this issue first. Now in regard to this issue, members of the jury, you must answer two questions. First, did the defendant rob Christine Brown and Charmele Slater with a firearm. The State must prove beyond a reasonable doubt that the defendant robbed Christine Brown and Charmele Slater with a firearm. If you are not convinced of this beyond a reasonable doubt the case is ended and the defendant would not be guilty.
Secondly, if you find that the defendant robbed Christine Brown and Charmele Slater with a firearm you must determine if the defendant was insane when the robbery with a firearm occurred.
He charged further: (1) if the jury was satisfied that defendant was insane at the time of the robbery, he would not be guilty and that would end the case; (2) if the jury answered issue 1-A "Yes" it must as a matter of law find the defendant not guilty and answer 1-B "Yes"; and (3) if the jury answered issue 1-A "No" it must skip issue 1-B and proceed to decide whether defendant was guilty or innocent of robbery with a firearm.
We find no error in the order in which the points were presented in this instruction. The Supreme Court in State v. Cooper, 286 N.C. 549, 571, 213 S.E.2d 305, 320 (1975), indicated:
Where, as here, there is evidence justifying the submission to the jury of the question of insanity as a defense to the charge, we believe a better procedure would be to submit to the jury as the first issue for their consideration, "Was the defendant (at the time of the alleged offense), by reason of a defect of reason or disease of the mind, incapable of knowing the nature and quality of the act which he is charged with having committed, or if he did know this, was he, by reason of such defect or disease, incapable of ...