State v. McNair , 272 N.C. 130 ( 1967 )

157 S.E.2d 660 (1967) 272 N.C. 130

STATE of North Carolina
v.
Tommy McNAIR.

No. 669.

Supreme Court of North Carolina.

November 29, 1967.

Atty. Gen. T. W. Bruton and Staff Atty. Raleigh A. Vanore, for the State.

W. Ritchie Smith, Jr., Fayetteville, for defendant appellant.

PER CURIAM:

"It is well settled in this jurisdiction that although the jury should receive and act upon such testimony with caution, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the accused." State v. Tilley, 239 N.C. 245, 249, 79 S.E.2d 473, 476, and cases cited; State v. Saunders, 245 N.C. 338, 342, 95 S.E.2d 876, 879; State v. Terrell, 256 N.C. 232, 236, 123 S.E.2d 469, 472. Too, "(i)t is thoroughly established law in North Carolina that without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty." State v. Spencer, 239 N.C. 604, 611, 80 S.E.2d 670, 675, and cases cited; State v. Peeden, 253 N.C. 562, 564, 117 S.E.2d 398, 400.

Applying the legal principles stated above, there was evidence which, when considered in the light most favorable to the State, is sufficient to show defendant was an active participant in the robbery of Mark Edwards. It was amply sufficient to require submission to the jury and to support defendant's conviction of common law robbery. Hence, Assignment of Error No. 1 based on Exception No. 1, directed to the court's refusal to allow defendant's motion as in case of nonsuit, is without merit.

The charge of the trial court was not included in the record on appeal. Hence, it is presumed the jury was instructed correctly on every principle of law applicable to the facts. State v. Strickland, 254 N.C. 658, 119 S.E.2d 781; State v. Hoover, 252 N.C. 133, 140-141, 113 S.E. 2d 281, 287 and cases cited therein.

Defendant's Assignments of Error Nos. 2, 3 and 4, based on Exceptions Nos. 2, 3 and 4, refer to the portion of the record quoted below.

"Q. How many times have you been indicted by the grand jury for larceny?

"OBJECTION BY THE DEFENDANT OVERRULED

"A. Never.

"Q. In May of 1966, were you indicted by the grand jury for larceny of a car and they let you plead guilty to the misdemeanor, isn't that right?

"OBJECTION BY DEFENDANT OVERRULED

"A. Say what, now?

"Q. In May, 1966, May 25th, they let you plead . . .

"A. They let me plead guilty to larceny?

"Q. To the unauthorized use or misdemeanor"

"A. That is the only one.

EXCEPTION NO. 2

"Q. And gave you eighteen months' sentence and put you on probation and you are on probation now?

"OBJECTION BY DEFENDANT OVERRULED

"A. That is correct.

EXCEPTION NO. 3

"Q. Then you were on probation at the time this thing happened?

"A. That is right

EXCEPTION NO. 4

"Q. And in June of 1966 you were indicted by the grand jury for larceny of an automobile?

"OBJECTION BY DEFENDANT OVERRULED

"A. No sir."

In Assignment of Error No. 2 based on Exception No. 2 defendant asserts the court erred in allowing the State to show, on cross-examination of defendant, "that the defendant had been previously indicted by the grand jury for larceny of a car when the evidence showed the defendant was never convicted of that offense." On this appeal, we need not reconsider whether the State should be permitted to cross-examine a defendant, for purposes of impeachment, with reference to whether he had been indicted for a specified criminal offense. See Stansbury, North Carolina Evidence, Second Edition, § 112, p. 255. Here, defendant testified he had not been indicted for larceny. In view of defendant's unequivocal negative answer, the solicitor's question cannot be deemed prejudicial to defendant.

In Assignments of Error Nos. 3 and 4, based on Exceptions Nos. 3 and 4, defendant asserts the court erred in allowing the State to introduce evidence that defendant had been given a sentence of eighteen months and was on probation at the time the alleged offense for which he was being tried was committed. It was permissible for the State to elicit on cross-examination of defendant, for purposes of impeachment, that defendant had pleaded guilty to a specific criminal offense, to wit, a misdemeanor. Stansbury, op. cit., § 112, p. 254-255. Ordinarily the quantum of punishment imposed upon conviction or a plea of guilty of another criminal offense is not admissible for purposes of impeachment. However, the fact the court saw fit to pronounce a probationary judgment would seem to put defendant in a more favorable light with reference to the criminal offense to which he had pleaded guilty. Under these circumstances, the admission of this evidence cannot be considered prejudicial error.

Having reached the conclusion that the assignments set forth by defendant and discussed in his brief do not disclose prejudicial error, the verdict and judgment will not be disturbed.

No error.