State v. Carr , 21 N.C. App. 470 ( 1974 )

204 S.E.2d 892 (1974) 21 N.C. App. 470

STATE of North Carolina
v.
William CARR and William Benjamin Davis.

No. 745SC143.

Court of Appeals of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Charles E. Rice, III, Wilmington, for defendant Carr.

Stephen E. Culbreth, Wilmington, for defendant Davis.

BALEY, Judge.

Defendants contend that since the indictments named William Brad Crowell as the owner of the stolen car, while the evidence showed that it was registered in the name of "Crowell's T. V.," there was a fatal variance between indictment and proof. It is true that an indictment must correctly specify the owner of the stolen property. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594; State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Jenkins, 78 N.C. 478. But the person named in the indictment may be either the person having a "general interest" in the stolen property—that is, the actual owner—or the person with a "special interest" in the property—that is, the person who had possession and control of it at the time when it was stolen. State v. Smith, 266 N.C. 747, 147 S.E.2d 165; State v. Law, 228 N. C. 443, 45 S.E.2d 374. Here it is clear that Crowell had a special interest in the stolen automobile.

The trial court did not err in admitting into evidence the side pipes and box of tapes found by Officer Page in defendant Carr's house and yard. Before allowing the State to introduce these items, the court held a voir dire hearing to determine their admissibility and issued findings of fact. In its findings of fact, the court held that Page had entered Carr's house to execute a valid arrest warrant, and that he had found the tapes and pipes in plain view. In view of these findings, the tapes and pipes were admissible in evidence even though Page had no search warrant when he seized them. When police officers lawfully enter a person's premises and observe evidence of a crime in plain view, they may seize it without obtaining a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Fry, 13 N.C.App. 39, 185 S.E.2d 256, cert. denied and appeal dismissed, 280 N.C. 495, 186 S.E.2d 514.

Defendant Davis contends that even if the pipes and tapes were properly admitted, the court should have instructed the jury to consider these items of evidence only against defendant Carr and not against Davis. The court properly refused to give such an instruction, for the pipes and tapes were relevant to the case against each defendant. Quinton Brown testified that he and Carr and Davis stole Crowell's car and removed many of the parts, and that some of the parts, including the pipes, were taken to Carr's house. The discovery of the pipes and tapes at Carr's house strongly corroborated Brown's testimony and tended to establish its truth.

Defendants argue that the court erred in granting the State's motion to consolidate their cases for trial, but this argument is without merit. When two defendants are charged with offenses arising out of the same transaction, and the State does not intend to use the confession of one as evidence against the other, the court may in its discretion consolidate the cases for trial. State v. Jones, 280 N.C. 322, 185 S.E.2d 858; State v. Pearson, 269 N.C. 725, 153 S.E.2d 494; State v. Walker, 6 N.C.App. 447, 170 S.E.2d 627, cert. denied. 277 N.C. 117. Defendants have not shown that the trial court abused its discretion.

Defendant Davis contends that the records of the Country Club Apartments should not have been admitted into evidence, since the authenticating witness, Gloria Todd, did not begin her work as manager of the apartment complex until April 1973. The witness Todd did testify, however, that she was familiar with the record-keeping system used by the Country Club Apartments, and that the records offered in evidence were made in accordance with this system. This testimony was sufficient to authenticate the records. State v. Springer, 283 N.C. 627, 197 S.E.2d 530. There is no requirement that business records be authenticated by the person who made them, or by the supervisor of the person who made them. State v. Franks, 262 N.C. 94, 136 S.E.2d 623. If the records themselves indicate that they were made at or near the time of the transaction in question, the authenticating witness need not testify from personal knowledge that they were made at that time. See State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878 (bank deposit slips prepared by defendant, authenticated by another bank employee; no indication that authenticating witness had personal knowledge of when slips were prepared); Flowers v. Spears, 190 N.C. 747, 130 S.E. 710 (bank ledger prepared by bookkeeper in Kannapolis branch office, authenticated by cashier whose office was in Concord); State v. Dunn, 264 N.C. 391, 141 S.E.2d 630; Edgerton v. Perkins, 200 N.C. 650, 158 S.E. 197.

Defendants were convicted by a jury in a trial that was free from prejudicial error.

No error.

BROCK, C. J. and PARKER, J., concur.