State v. Jenerett , 281 N.C. 81 ( 1972 )

187 S.E.2d 735 (1972) 281 N.C. 81

STATE of North Carolina
v.
Ronald Douglas JENERETT.

No. 32.

Supreme Court of North Carolina.

April 12, 1972.

Atty. Gen. Robert Morgan, Associate Atty. William Lewis Sauls, Raleigh, and Deputy Atty. Gen. James F. Bullock for the State.

R. Lewis Ray, Winston-Salem, of the Legal Aid Society of Forsyth County, for defendant appellant.

MOORE, Justice.

Defendant first assigns as error the denial of defendant's motions for judgment of nonsuit made at the conclusion of the State's evidence and at the conclusion of all the evidence. Defendant contends that a mere confession is not sufficient to warrant a conviction, and that it is incumbent on the State to show independent of his confession that a robbery or attempted robbery was actually committed and that Samuel was killed in the perpetration of such robbery or attempted robbery in order to convict him of first degree murder. Defendant relies on Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954), and Smith v. United States, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192 (1954), which hold that a felony conviction may not be based upon or sustained by a naked extrajudicial confession of guilt uncorroborated by any other evidence. This has long been the law in North Carolina.

As stated by Justice Rodman in State v. Whittemore, 255 N.C. 583, 589, 122 S.E.2d 396, 400-401 (1961), quoting from State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954):

"``. . . (T)he overwhelming authority in this country is to the effect that a naked extrajudicial confession of guilt by one accused of crime, unaccompanied by any other evidence, is not sufficient to warrant or sustain a conviction.. . .'"

Justice Rodman, continuing, said:

"Evidence to corroborate the confession need not be direct. It may be circumstantial. State v. Thomas, 241 N.C. 337, 85 S.E.2d 300. . . . ``Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances, as will, when taken in connection with the confession, establish the prisoner's guilt in the minds of the jury beyond a reasonable doubt.' [Masse v. United States, 210 F.2d 418 (5th Cir. 1954), cert. denied 347 U.S. 962, 74 S. Ct. 711, 98 L. Ed. 1105 (1954)]."

Therefore, the question to be decided in the present case is whether there is evidence of sufficient probative value, aliunde the confession, to establish the fact that the crime as charged has been committed by the defendant.

The evidence for the State tends to show the following facts: Defendant talked to Chalmers Gray Bohannon at the corner of 24th Street and Jackson Street, approximately 100 to 150 feet from Samuel's Grocery Store, and asked Bohannon who ran the store and if anyone was in the store with the owner. At that time defendant had a .32 caliber pistol. Defendant was seen by Preston Webb going into the grocery store at a time no one except Samuel was there; soon afterward Webb heard a noise like a pistol shot and defendant ran out of the store. A lady met defendant as he came out, and when she went in she saw Samuel lying on the floor. She screamed and witness Webb ran to the store and also saw Samuel on the floor. Samuel was taken to the hospital and died as a result of a gunshot wound in the chest. The testimony further shows that when the officer arrived at the scene, the cash register was empty except for nickels and pennies and that four crumpled checks were found near the door. Shortly after the shooting defendant was seen with considerable money in his possession, and later in a conversation with a friend of his, Johnny George Johnson, defendant stated that he killed "the dude" and hid the money in the woods.

In considering the motions for compulsory nonsuit in this case, we are not concerned with the weight of the testimony or with the truth or falsity, but only with the sufficiency to carry the case to the jury and to sustain the indictment. State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). Considering the evidence in the light most favorable to the State, as we must, we conclude that there was ample evidence, aliunde the defendant's confession, to sustain a finding by the jury that defendant shot and killed Samuel while robbing him.

When a murder is committed in the perpetration or attempt to perpetrate any robbery, burglary or other felony, G.S. § 14-17 declares it murder in the first degree. In those instances the law presumes premeditation and deliberation, and the State is not put to further proof of either. State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970).

Although defendant introduced evidence which tended to contradict the testimony for the State, the jurors chose to believe the evidence presented by the State. They alone are the triers of fact. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934). The State's evidence of the corpus delicti, in addition to defendant's confession of guilt, notwithstanding defendant's evidence in conflict, is sufficient to carry this case to the jury and to support the verdict of guilty as rendered by the jury. State v. Stinson, 263 N.C. 283, 139 S.E.2d 558 (1965). The motions for judgment as of nonsuit were properly overruled.

Defendant next contends that the court erred by asking Mrs. Samuel the following questions:

"Q. Just one minute. Who did you say owned the store? Or did you say? Were you asked that question?

"A. No, I wasn't asked that question.

"Q. Well, excuse me. Did your husband have a middle name or second name?

"A. Yes.

"Q. What was his full name?

"A. Charlie Bradley Samuel."

At this time the court asked the solicitor to approach the bench, and following a conference at the bench the solicitor asked the following questions:

"Q. Mrs. Samuel, who owned this store?

"A. It was in my husband's name, Charles. Charlie Bradley Samuel owned the store.

"Q. It was in his name?

"A. Yes.

"Q. Did he own the building?

"A. Yes.

"Q. And did he also own the merchandise in the building?

"A. Yes."

Defendant contends that the ownership of the property was a "crucial and germane element of the State's case," and that by inquiring as to the ownership the trial judge was attempting to "plug up the loopholes." Defendant is charged with a felony-murder, and proof of the ownership of the store or merchandise therein is not essential to the robbery charge. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968). Defendant does not point out how these questions prejudiced his case, and unless prejudicial effect on the result of the trial is shown, the error, if any, will be considered harmless. State v. Holden, 280 N.C. 426, 185 S.E.2d 889 (1972); State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950); 2 Strong, N.C. Index 2d, Criminal Law § 99, p. 634. It must appear with ordinary certainty that the rights of the prisoner have in some way been prejudiced by the conduct of the court before such conduct can be treated as error. State v. Holden, supra. No such showing appears in this case. This assignment is without merit.

Defendant next contends that the court erred in allowing a police officer to read into evidence that portion of the confession which related to defendant's intent to commit other crimes prior to the commission of the crime for which he is charged, defendant contending that the evidence of one offense is inadmissible to prove another and independent crime—wholly disconnected and in no way related to each other—citing State v. Choate, 228 N.C. 491, 46 S.E.2d 476 (1948). As a general statement this is true, but as stated by Justice Lake in State v. Atkinson, 275 N.C. 288, 312-313, 167 S.E.2d 241, 256 (1969):

". . . While it is well established that evidence of other crimes, having no bearing upon the crime for which the defendant is on trial, may not be introduced prior to his taking the stand as a witness in his own behalf, it is equally well settled that all facts, relevant to the proof of the defendant's having committed the offense with which he is charged, may be shown by evidence, otherwise competent, even though that evidence necessarily indicates the commission by him of another criminal offense. State v. Christopher, 258 N.C. 249, 128 S.E.2d 667; State v. McClain, 240 N.C. 171, 81 S.E.2d 364; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; Stansbury, North Carolina Evidence, 2d Ed., § 91. Thus, such evidence of other offenses is competent to show . . . the quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. State v. Christopher, supra; State v. Harris, supra; Stansbury, North Carolina Evidence, 2d Ed., §§ 91 and 92."

This portion of defendant's statement was competent to show defendant's intent to commit a robbery and as a part of the chain of circumstances leading up to the matter on trial. It was also competent to properly develop the evidence in the case at bar. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970). This assignment is overruled.

Defendant next contends that the court erred in allowing Officer Weatherman, over the objection of defendant, to give an opinion as to the caliber of the bullet taken from the body of the deceased. The bullet in question had been identified by Dr. Ernest Austin as being the bullet removed from the body of the deceased and was introduced into evidence without objection. Officer Weatherman was first asked to identify the bullet. He replied: "It is a .32 missile from a .32 cartridge. This particular item was turned over to me by Doctor Austin." No objection was made at this time or shortly thereafter when he testified: "I have been a police officer for nearly thirty-one years. I have had training in firearms. We have had several days over the years of training. I have investigated other cases in which bullets were involved and used numbers of times. I believe I am familiar with the caliber of weapons. In my opinion this projectile in my hands is a .32 caliber bullet from a .32 cartridge." The third time Officer Weatherman was asked to give his opinion as to the caliber of the bullet, defendant did object, and the objection was overruled. Since the same evidence had twice been admitted without objection, the benefit of this objection is lost. State v. Hairston, 280 N.C. 220, 185 S.E.2d 633 (1972); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952).

While the trial court did not expressly find the witness to be an expert in ballistics, the court did allow him to give his opinion as to the caliber of the bullet. By admitting the testimony as to the caliber of the bullet, the court presumably found him to be an expert. There was ample evidence to support such finding. Teague v. Duke Power Co., 258 N.C. 759, 129 S.E.2d 507 (1963); State v. DeMai, 227 N.C. 657, 44 S.E.2d 218 (1947). This assignment is overruled.

The other assignments of error are not discussed in defendant's brief and are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783 (1961); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). However, these assignments have been carefully considered and are found to be without merit.

Defendant having failed to show prejudicial error, the verdict and judgment will be upheld.

No error.