State v. Clark ( 1973 )

197 S.E.2d 605 (1973) 18 N.C. App. 621

STATE of North Carolina
v.
Alphonzo CLARK.

No. 7315SC453.

Court of Appeals of North Carolina.

July 11, 1973.

Atty. Gen. Robert Morgan by Howard P. Satisky, Asst. Atty. Gen., for the State.

Chambers, Stein, Ferguson & Lanning by Adam Stein, Chapel Hill, for defendant appellant.

BRITT, Judge.

Defendant assigns as error the denial of his motion for a bill of particulars, contending that the court violated G.S. § 15-143 and his right to due process of law. This assignment has no merit. The statute clearly provides that a motion for a bill of particulars is addressed to the discretion of the trial judge and our courts have held consistently that the trial judge's ruling on the motion is not subject to review except for palpable and gross abuse of discretion. State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967); State v. Robinson, 15 N.C.App. 362, 190 S.E.2d 270 (1972); cert. den. 281 N.C. 762, 191 S.E.2d 363. We perceive no abuse of discretion.

Defendant assigns as error the court's limiting him to six peremptory jury challenges. This assignment is without merit.

G.S. § 9-21(a) provides that in capital cases each defendant is entitled to fourteen peremptory challenges and in all other criminal cases, each defendant is entitled to only six peremptory challenges. A capital case has been defined as one in which the death penalty may, but need not necessarily, be imposed. Lee v. State, 31 Ala.App. 91, 13 So. 2d 583, 587 (1943). The case at bar ceased to be a capital case when, before the selection of jurors began, the court announced that under no circumstances would the death penalty be imposed on defendant on account of the charges for which he was being tried. Furthermore, assuming arguendo that defendant was entitled to fourteen peremptory challenges, it would appear that he waived his right to complain when he used only five peremptory challenges. See State v. Allred, 275 N. C. 554, 169 S.E.2d 833 (1969).

Defendant assigns as error the admission into evidence of the confession of codefendant Archie Parker with whom defendant was tried. Defendant contends that the confession implicated him and constituted prejudicial error, particularly when defendant had objected to a consolidated trial and in the absence of an instruction to the jury not to consider the confession as against defendant. We find no merit in this assignment.

The record discloses that the confession, provided through the testimony of Deputy McCullock, made no reference to defendant by name. Defendant contends that when McCullock referred to "one of the men" or made a similar reference in relating the confession, the jury was able to conclude that the reference was to defendant. We reject the contention. The evidence showed that several others in addition to defendant and Archie were together at various times during the day of the alleged offense and were present when the offense occurred. We hold that the confession was not prejudicial to defendant. See State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).

Defendant assigns as error the admission of evidence pertaining to the assault on Billy Goodwin, contending that the only effect of evidence of that separate offense was to excite prejudice against defendant. This assignment has no merit.

The general rule is that evidence of a distinct, substantive offense is inadmissible to prove another and independent crime; but to this there is the exception that proof of the commission of other like offenses is competent to show the quo animo, intent, design, scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence in respect to the matter on trial, when such crimes are so connected with the offense charged as to throw light on one or more of these questions. State v. Harris, 223 N.C. 697, 28 S.E.2d 232 (1943).

The evidence complained of under this assignment tended to show that defendant and Parker went onto the Orange High School grounds on 1 February 1972 "looking for trouble." We hold that evidence of the assault on Goodwin was competent to show quo animo, the intention or motive of defendant. The assignment of error is overruled.

We have carefully considered the other assignments of error brought forward and argued in defendant's brief but finding them to be without merit, they too are overruled.

No error.

HEDRICK and VAUGHN, JJ., concur.