State v. Foster , 282 N.C. 189 ( 1972 )

192 S.E.2d 320 (1972) 282 N.C. 189

STATE of North Carolina
v.
Willie FOSTER, Jr.

No. 51.

Supreme Court of North Carolina.

November 15, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William B. Ray and Associate Attorney Thomas W. Earnhardt, Raleigh, for the State.

Hicks & Harris by Richard F. Harris, III, and Eugene C. Hicks, III, Charlotte, for defendant appellant.

BOBBITT, Chief Justice.

Although the undisputed and unequivocal testimony of Mrs. Davis tends to show that she was assaulted, the jury failed to find that she was assaulted by defendant. Indeed, Mrs. Davis's testimony affirmatively discloses that she could not identify defendant as her assailant. The appeal relates solely to the indictment and trial of defendant for first degree burglary.

We consider first those assignments of error which, if tenable, would require dismissal rather than a new trial.

On 14 February 1972, defendant moved that the indictments be dismissed because he had been denied a preliminary hearing. In an order dated 17 February 1972, Judge Hasty denied defendant's motion but provided for an examination of the State's witnesses by defendant's counsel prior to trial. At the commencement of the trial at the 1 May 1972 Session, the motion to dismiss was renewed by defendant and denied by Judge McLean. Defendant excepted to and assigns as error each of these rulings.

Motions filed by defendant assert the following: After his arrest on 22 October 1971, defendant was confined in jail until released on 19 January 1972. Nine warrants had been issued, two of which were for the crimes for which he was tried at the 1 May 1972 Session. Defendant was present and represented by counsel at each of five scheduled preliminary hearings. At each of the first four, the hearing was continued on motion of the State and over defendant's objection. The last was on 19 January 1972 when, by order of the presiding District Court Judge, all of the cases were dismissed from the docket of that court and in each case the entry "nolle prosse" was made.

We take judicial notice that the 3 January 1972 Session, at which the two indictments on which defendant was tried were returned was a one-week session. A week or so after his release on 19 January 1972, defendant was rearrested on a capias based on these indictments. Seemingly, the District Court Judge who ordered defendant's release on 19 January 1972 was unaware of the fact that defendant had been indicted by the grand jury.

Admittedly, defendant was entitled to a prompt preliminary hearing. Assuming the facts to be as stated in defendant's motions to dismiss, sufficient justification does not appear for the continued failure of the State to proceed with a preliminary hearing and its eventual abandonment of this procedure in favor of submitting a bill of indictment to the grand jury. It deemed advisable, defendant could have applied to one of the Justices or Judges of the Appellate Division or to a superior court judge for a writ of habeas corpus to review the legality of his confinement between 22 October 1971 and 19 January 1972. Upon return of such writ, the hearing Justice or Judge might well have ordered defendant's release from custody unless a prompt preliminary hearing was afforded. However, the failure of the State to proceed with the scheduled preliminary hearings did not per se constitute ground for complete and final dismissal of the charges against him.

Neither the North Carolina nor the United States Constitution requires a preliminary hearing. A preliminary hearing is not a necessary step in the prosecution of a person accused of crime, and an accused person is not entitled to a preliminary hearing as a matter of substantive right.

"A preliminary hearing may be held unless waived by defendant. G.S. 15-85 and G.S. 15-87. But none of these statutes prescribes mandatory procedures affecting the validity of a trial. A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction." State v. Hargett, 255 N.C. 412, 413, 121 S.E.2d 589, 590 (1961). "We have no statute requiring a preliminary hearing, nor does the State Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing." State v. Hackney, 240 N.C. 230, 237, 81 S.E.2d 778, 783 (1954). Accord, Gasque v. State, 271 N.C. 323, 329-330, 156 S.E.2d 740, 744 (1967); State v. Overman, 269 N.C. 453, 467, 153 S.E.2d 44, 56 (1967); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970); Carroll v. Turner, 262 F. Supp. 486 (E.D.N.C. 1966).

"If the grand jury finds an indictment, there is no need to conduct a preliminary examination." 21 Am.Jur.2d Criminal Law, § 442 (1965). Accord, Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965).

When it was brought to Judge Hasty's attention that defendant's counsel had had no opportunity to examine the State's witnesses on account of the State's failure to conduct a preliminary hearing, an order was promptly made affording defendant's counsel an opportunity to conduct such examinations. Nothing in the record discloses that defendant was adversely affected at trial on account of the postponement of the scheduled preliminary hearings and the eventual abandonment of this procedure after the grand jury had returned the indictments. We hold that such irregularities as may have occurred in connection with the failure to provide a preliminary hearing for defendant were insufficient to preclude prosecution of defendant for the crimes for which he was indicted. Hence, the denial by Judge Hasty and by Judge McLean of defendant's motions to dismiss the indictments was proper.

Defendant assigns as error the denial of his motion to quash the indictment, citing Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Furman relates to punishment, not to the elements of any crime. The indictment is in proper form and sufficiently charges first degree burglary. Hence, the assignment is wholly without merit.

Defendant's further contention that the indictment is fatally defective because it does not sufficiently describe the property which defendant intended to steal is wholly without merit. 13 Am.Jur.2d Burglary, § 36 (1964); 12 C.J.S. Burglary § 39 (1938).

Defendant assigns as error the denial of his motion in arrest of judgment and as support therefor repeats the contentions previously made in connection with his motion to quash. The motion was properly denied.

Defendant assigns as error the denial of his motion for judgment as in case of nonsuit.

He contends this motion should have been allowed because (1) the evidence was insufficient for submission to the jury, and (2) there was a fatal variance between the indictment and the proof.

There was ample evidence to support findings that the Davis home, then occupied by Davis, Mrs. Davis and their two children, had been feloniously broken into and entered in the nighttime with intent to commit the crime of larceny and that, in executing that intent, the television set, the record player and money were stolen.

The State's contention that defendant is guilty of burglary as charged rests upon evidence which tends to show that one of three prints lifted from one of the flower pots shortly after the breaking, entering and larceny occurred, and a print of defendant's right index finger taken by Officer Stubbs on 12 November 1971, are identical.

"To warrant a conviction, the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed under such circumstances that they could only have been impressed at the time when the crime was committed." Annot., "Evidence—Finger, Palm, or Footprint," 28 A.L.R. 2d 1115, 1154, § 29 (1953). See also State v. Smith, 274 N.C. 159, 164, 161 S.E.2d 449, 452 (1968), and authorities there cited.

Davis and Mrs. Davis testified they did not know defendant and had never given him permission to enter their home. Defendant testified he had not been in the Davis home on the occasion referred to in the indictment or at any other time. There was evidence the flower pot had been frequently washed and otherwise handled by Mrs. Davis during the three years it had been in the Davis home. There was evidence that the flower pot from which the latent prints were lifted had been moved from its usual position incident to the removal and theft of the television set.

The evidence most favorable to the State would permit a jury to find (1) that the print lifted from the flower pot was in fact a print of defendant's right index finger; (2) that the latent print of defendant's right index finger was placed thereon by defendant on the occasion referred to in the indictment; and (3) that defendant was present when the crime charged in the indictment was committed and at least participated in its commission. Hence, the evidence was sufficient to warrant submission of the case to the jury.

As to fatal variance, the indictment charges that the alleged burglary was committed on 5 September 1971 "between the hours of 12:00 p. m. and 1:00 a. m." We take judicial notice that 5 September 1971 was a Sunday. Both Davis and Mrs. Davis testified when they went to bed and where they slept on 5 September 1971. Their testimony contains no reference to the day of the week when they first went to bed or the day of the week when they were aroused. Defendant contends the evidence indicates they went to bed on 5 September 1971; that their home was broken into on 6 September 1971; and that this constitutes the fatal variance. This contention is not based on unequivocal evidence. The evidence discloses that Officer Adams entered "5 Sept. 71" on State's Exhibit No. 1 after Officer Cobb had completed his efforts to lift latent fingerprints. It is noted that the court instructed the jury they would return a verdict of guilty as charged if they found beyond a reasonable doubt that on 5 September 1971 defendant had committed the acts necessary to constitute the alleged crime of burglary in the first degree. Moreover, under the circumstances, the suggested variance would not be material. Time was not of the essence of the crime. G.S. § 15-155; State v. Williams, 261 N.C. 172, 134 S.E.2d 163 (1964). Nor does it appear that the suggested variance would be prejudicial. Defendant's evidence tends to show that both he and his wife were at home in bed throughout the night of 4-5 September 1971 and throughout the night of 5-6 September 1971.

Although his asserted grounds for dismissal are untenable, defendant is entitled to a new trial for the reason set forth below.

According to the record during the cross-examination of defendant the following occurred:

"Q. Now, I believe you had your own hand—excuse me—your own fingerprint specialist examine those fingerprints, is that not correct?

MR. HICKS: Objection.

COURT: Overruled, exception.

EXCEPTION NO. 56

Q. You and your lawyer hired your independent fingerprint expert to examine those fingerprints, is that not correct?

MR. HICKS: Objection.

COURT: Overruled, exception. Answer the question.

EXCEPTION NO. 57

A. Yes, sir.

Q. And he told you that that fingerprint was the same as yours, is that not correct?

MR. HICKS: Objection.

COURT: Overruled, exception.

EXCEPTION NO. 58

A. That is right."

Whatever an unidentified person referred to as a fingerprint expert may have said with reference to whether in his opinion the fingerprints on State's Exhibit No. 1 were those of defendant was hearsay and inadmissible. Defendant's objections to the quoted questions should have been sustained. The prejudicial impact of the testimony elicited by these questions is obvious. The erroneous admission thereof entitles defendant to a new trial.

Upon the present record serious questions arise as to the admission over objection of testimony regarding a master fingerprint card bearing date 1958 and the name "Willie Foster, Jr.," and of testimony relating to a card referred to as showing fingerprints of defendant taken by one Pendergrass when defendant was booked on 22 October 1971, in the absence of testimony that the prints on these cards were made by defendant. A discussion of these questions is deemed unnecessary. If they arise at all at the next trial, presumably there will be additional evidence as to when and by whom these prints were taken.

Discussion of defendant's remaining assignments is unnecessary. They relate to questions which may not arise at the next trial.

New trial.