State v. Peele , 281 N.C. 253 ( 1972 )

188 S.E.2d 326 (1972) 281 N.C. 253

STATE of North Carolina
v.
Haywood Lindale PEELE.

No. 110.

Supreme Court of North Carolina.

May 10, 1972.

Robert Morgan, Atty. Gen., by Walter E. Ricks, III, Associate Atty. Gen., for the State.

A. Maxwell Ruppe and Paul G. Mallonee, Fayetteville, for defendant appellant.

HIGGINS, Justice.

The bills of indictment charged armed robbery and murder committed in the perpetration of the robbery. The defendant's witness Calloway had already been tried and entered pleas of guilty on the identical charges. The State's pre-sentence testimony on the charges against Calloway was transcribed and a copy was delivered to the defense counsel in response to the motion for discovery filed at the beginning of the hearing. The disclosure statute, Chapter 1064, Session Laws of 1967, now G.S. § 15-155.4, was enacted after this Court's decision in State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334. According to the statute, a pre-trial order may require the solicitor to produce for inspection and copy "specifically identified exhibits" to be used in the trial and to permit defense counsel to examine "specific expert witnesses" who may be called. The statute does not contemplate anything resembling the demand made by defense counsel in this case. The purpose of the statute is to enable a defendant to guard against surprise documents and surprise expert witnesses. Nothing of that nature was shown to be available or its use contemplated in this case. The order to produce a copy of the pre-sentence hearing would appear to have given defense counsel sufficient information to enable him to guard against surprises. The Assignment of Error No. 1 is not sustained.

By defendant's Assignments of Error Nos. 3 and 4, the defendant challenges the solicitor's leading questions. Examination discloses that questions, if on occasion somewhat leading, were intended to facilitate the hearing. The court was well within its prerogative in allowing them. State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Pearson, 258 N.C. 188, 128 S.E.2d 251. The Assignments of Error Nos. 3 and 4 based on leading questions are not sustained.

The Defendant's Assignment of Error No. 6 is addressed "To the court permitting Detective W. A. Newsome, a State's witness, on cross examination to volunteer information that was not in response to any question." The questions related to the officer's conversations with a witness. It appears that these conversations had occurred on more than one occasion between the officer and Gooding. They concerned the identity of the two men whom he had taken to and from the Icenogle store and the home of Catherine Winborn. The witness in his reply to questions had gone somewhat beyond the answers to the last question. In a long trial it is not unusual for a witness to give testimony somewhat beyond the precise form of a question. "Whether an answer is responsive to a question is not the ultimate test on a motion to strike. If an unresponsive answer produces irrelevant facts, they may and should be stricken and withdrawn from the jury. However, if the answers bring forth relevant facts, they are nonetheless admissible because they are not specifically asked for or go beyond the scope of the question." State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119; State v. Staten, 271 N.C. 600, 157 S.E.2d 225. Assignment of Error No. 6 is not sustained.

Defense counsel in the brief and in the oral argument stressfully contends that the court committed prejudicial error by refusing to admit in evidence the letter dated August 24, 1971, addressed to the defendant at 50 Gates Avenue, Brooklyn, New York. The letter was written forty-two days after the robbery and related to defendant's application for a job without indicating any date on which the application was made. Hence it contained nothing from which any inference may be drawn as to the whereabouts of the defendant on July 12, 1971. The letter was properly excluded as irrelevant. We note the defendant's objection to the letter solely because of the stress and importance defense counsel seemed to attach to it.

Defendant's 8th and final Assignment of Error challenges the sufficiency of the evidence to survive his motion to dismiss at the close of all the evidence. On this motion the State's evidence is deemed to be true. All inconsistencies and contradictions are to be resolved in favor of the State. The defendant's evidence in contradiction is not to be considered. The evidence when properly construed makes out a strong case for the prosecution showing a murder committed in the perpetration of a robbery.

Mrs. Icenogle left her husband alone in the store at 9 o'clock. The cash register was in place. She returned at 10 o'clock in response to a call from the officers. Mr. Icenogle was dead and the cash register missing. The defendant and Anthony Calloway are shown to have entered Icenogle's store just before 10 o'clock at night. A commotion in the store was heard. Calloway and the defendant were seen running from the store carrying a cash register. They appeared at the Winborn home, opened the cash register, divided the money, and left. Just before the robbery, Calloway had borrowed Catherine Winborn's twenty-two calibre pistol. Shortly after the occurrence he returned it. Icenogle's death resulted from a twenty-two calibre bullet. The evidence indicates that Calloway probably did the shooting, but both he and the defendant entered the store together. They left together with the cash register and divided the contents. Both were equally guilty of the murder which one committed in the presence of the other. "Where two or more persons aid and abet each other in the commission of a crime, all being present, each is a principal and equally guilty regardless. . . of which is the actual perpetrator. . . ." Strong's N.C. Index, 2d, Vol. 2, Criminal Law, § 9. See also State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655; and State v. Ham, 238 N.C. 94, 76 S.E.2d 346.

The evidence in its light most favorable to the State, establishes all essential elements of murder committed in the perpetration of armed robbery. State v. Jones, 280 N.C. 60, 184 S.E.2d 862; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; and State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. In the trial, conviction and sentence on the charge of murder in the first degree we find no error.

However, the face of the record proper requires this Court, of its own motion, to take notice of a fatal defect in the verdict and judgment in No. 71 CR 24751 charging armed robbery. Examination of the indictments, verdicts, and judgments disclose that the armed robbery charge was embraced in and made a part of the charge of murder in the first degree. Wharton's Criminal Law and Procedure, Vol. 1, Section 148, states the rule: "It is generally agreed that if a person is tried for a greater offense, he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, . . ." Many cases recognize and apply the same principle. Among them are State v. Thompson, 280 N.C. 202, 185 S.E.2d 666; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892; State v. Parker, 262 N.C. 679, 138 S.E.2d 496; State v. Birckhead, 256 N.C. 494, 128 S.E.2d 838; and State v. Bell, 205 N.C. 225, 171 S.E. 50.

From the foregoing it follows as a matter of course that the judgment must be arrested in the robbery case.

In No. 71 CR 24752—No error.

In No. 71 CR 24751—Judgment arrested.