State v. Duncan , 290 N.C. 741 ( 1976 )

228 S.E.2d 237 (1976) 290 N.C. 741

STATE of North Carolina
v.
Charles Earl DUNCAN.

No. 11.

Supreme Court of North Carolina.

October 5, 1976.

Rufus L. Edmisten, Atty. Gen. by John M. Silverstein, Sp. Deputy Atty. Gen., Raleigh, for the State.

Robert F. Rush, Charlotte, for defendant.

LAKE, Justice.

The appellant's principal contention on this appeal is that the trial court erred in allowing the State's witnesses, Watkins and Devine, to testify, over objection, concerning their associations with the appellant in other criminal activities, specifically their collaboration with him in a series of unspecified breakings, enterings and stealings extending throughout North Carolina, South Carolina, Virginia, Georgia and Florida over a period of two years prior to the breaking and entering of the Sherwin home. There is no merit in this assignment of error.

The general rule is that in a prosecution for a particular crime the State, prior to the defendant's taking the witness stand and thus placing his general character and credibility in issue, cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, as there noted, numerous exceptions to this rule are also well established. One is that such evidence may be admissible to identify the defendant as a perpetrator of the crime with which he is presently charged. Another is that such evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.

The evidence here in question was to the effect that the appellant, the two witnesses and others were members of a group, which, over a period of time, had made it their business to burglarize houses previously identified by leaders of the group as likely to yield substantial loot to thieves. In State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975), as here, the defendant's defense was alibi. We held that evidence of prior similar offenses committed in conjunction with the witness was competent as tending to establish a common plan or scheme and also was competent on the question of identity.

In State v. Stancill, 178 N.C. 683, 100 S.E. 241 (1919), the defendant was indicted for larceny of tobacco from the barn of one Little. A witness for the State was permitted to testify that the defendant had participated in a theft of tobacco from the barn of one Wilkinson. The Court, speaking through Justice Walker, said:

"The testimony as to the theft of the Wilkinson tobacco was offered merely to show the intent with which the defendants stole this tobacco, and not to prove the accusation substantively. It was sufficiently connected with the main charge to render it competent for this purpose. It was all taken to Raymond Stancill's, the common storehouse for the loot of these defendants. It was but a part of a series of transactions carried out in pursuance of the original design, and it was contemplated by them in the beginning, that they should plunder the tobacco barns in the neighborhood, and this was one of them. The jury might well have inferred this common purpose from the evidence. Robbing Wilkinson was part of the common design, and done in furtherance of it. Proof of the commission of other like offenses to show the scienter, intent, or motive is generally competent when the crimes are so connected or associated that this evidence will throw light upon that question."

In State v. Simons, 178 N.C. 679, 100 S.E. 239 (1919), the Court, speaking through Chief Justice Clark, said:

"There are offenses which are committed in sudden temper, or under violent provocation, or by the impulse of passion. As to these, the only competent evidence is what took place at the time. S. v. Norton, 82 N.C. [628] 630. But the crime of illicit dealing in intoxicating liquor is in the same class with larceny, counterfeiting, forgery, obtaining money under false pretenses, and burglary, which are all committed with deliberation, in defiance of law, and for the ignoble motive of making a profit thereby. In all such cases it is competent to prove intent by showing matters of like nature, before or after the offense."

Evidence of prior offenses was likewise held competent in State v. Hunter, N.C., 227 S.E.2d 535, decided by this Court 1 September 1976. See also: State v. Smoak, 213 N.C. 79, 90, 195 S.E. 72 (1937); State v. Flowers, 211 N.C. 721, 192 S.E. 110 (1937); State v. Batts, 210 N.C. 659, 188 S.E. 99 (1936); State v. Miller, 189 N.C. 695, 128 S.E. 1 (1925).

There was no error in permitting Mr. Sherwin to testify that the State's Exhibit No. 1, a diamond shown to have been purchased from the defendant by the State's witness Howell after the Sherwin burglary, was the same diamond taken from Mrs. Sherwin in the course of the burglary here in question. The contention of the defendant is that Mr. Sherwin, a dealer in diamonds for many years, was found by the court to be competent to testify as to "an opinion as to the weight of the stone," which qualification would not permit him to testify as to the identity of the stone. There is no merit in this contention.

One need not be an expert in order to be competent to testify that an article seen by him in the courtroom is the same article seen by him on a prior occasion. Difficulty of identification, inherent in the nature of the article, ordinarily would go only to the question of the weight to be given such evidence by the jury. In the present case, Mr. Sherwin's identification of the diamond introduced in evidence as State's Exhibit No. 1 was based in part upon its size, weight, color, and cut but primarily upon his observing thereon a scratch which he had previously noted on the diamond in possession of his wife prior to the burglary. See: State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555 (1966); Stansbury, North Carolina Evidence, Brandis Revision, § 129.

A number of assignments of error made by the defendant are listed in his brief but no authority is cited and no argument made in support thereof. These assignments are deemed abandoned. Rule 28(a), Rules of Appellate Procedure, 287 N.C. 741.

The defendant assigns as error the action of the District Attorney in propounding certain questions to the State's witnesses Watkins and Devine and to the defendant himself on cross-examination. The record discloses that in each instance, save two, in which neither the question nor the answer elicited thereby was prejudicial, the court sustained the defendant's objection and, in one instance, instructed the jury to disregard the question and not consider it in the deliberations of the jury. No further ruling of the court with reference to these questions was requested by the defendant. We find no merit in this assignment of error.

There was no error in permitting the State's witness Watkins to testify on redirect examination that, after his arrest, he wrote certain letters, about which he was interrogated by the appellant's counsel on cross-examination, because he feared that otherwise it would be known that he intended to testify for the State and, to prevent him from doing so, he would be killed.

Our examination of the entire record shows no error prejudicial to the defendant. The evidence is ample, both as to the nature of the offense committed and as to the appellant's participation therein, to support the verdict.

NO ERROR.