State v. Hamilton

141 S.E.2d 506 (1965) 264 N.C. 277

STATE
v.
Lexy Lee HAMILTON, James Cally Hamilton, Cecil Hamilton.

No. 247.

Supreme Court of North Carolina.

April 28, 1965.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. James F. Bullock, for the State.

Arthur Vann, Durham, for defendant appellants.

DENNY, Chief Justice.

The defendants' first assignment of error is to the granting of the solicitor's motion to consolidate the cases for trial.

It is provided in G.S. § 15-152, in pertinent part, as follows:

"When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated * * *."

In State v. Combs, 200 N.C. 671, 158 S.E. 252, in considering the identical question presented by this assignment of error, the Court said:

"The court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others. C.S. § 4622 (now G.S. § 15-152). State v. Cooper, 190 N. C. 528, 130 S.E. 180; State v. Jarrett, 189 N.C. 516, 127 S.E. 590; State v. Malpass, 189 N.C. 349, 127 S.E. 248."

The three defendants were charged in separate bills of indictment with identical crimes. Therefore, the offenses charged are of the same class, relate to the same crime, and are so connected in time and place that evidence at the trial upon one of the indictments would be competent and admissible at the trial on the others. In such cases there is statutory authority for a consolidation. State v. Morrow, 262 N.C. 592, 138 S.E.2d 245; State v. Bryant, 250 N.C. 113, 108 S.E.2d 128; State v. Spencer, 239 N.C. 604, 80 S.E.2d 670; State v. Truelove, 224 N.C. 147, 29 S.E.2d 460; State v. Norton, 222 N.C. 418, 23 S.E.2d 301.

On the record presented, we hold that the court below committed no error in allowing the motion for the consolidation of these cases for trial. The foregoing assignment of error is overruled.

Were the tools and implements found in James Hamilton's automobile, which was being used by the three defendants, admitted in evidence in violation of G.S. § 15-27, Article I, § 11 of the Constitution of North Carolina, and the Fourteenth Amendment to the Constitution of the United States? The defendants assign as error the admission of these tools and implements in evidence on the ground that the defendants were arrested without a warrant and that the automobile was searched without a search warrant. They contend the arrests were unlawful and the evidence found in the car was inadmissible.

There is plenary evidence, and the court below so found, that the Rocky Mount police were looking for three men in a 1963 Cadillac, maroon and cream in color, with a Maryland license place, in connection with a robbery which had been committed the night before at the Minges Beer Company in Rocky Mount. The officers had reasonable ground to believe that the defendants had committed the felony.

G.S. § 15-41 provides:

"A peace officer may without warrant arrest a person: * * * (b) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody."

In State v. McPeak, 243 N.C. 243, 90 S.E.2d 501, it is said:

"It is well settled law that a person may waive his right to be free from unreasonable searches and seizures. A consent to search will constitute such waiver, only if it clearly appears that the person voluntarily consented, or permitted, or expressly invited and agreed to the search. Where the person voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated. State v. Moore, 240 N.C. 749, 83 S.E.2d 912 (where many cases are cited); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477; People v. Preston, 341 Ill. 407, 173 N. E. 383; 77 A.L.R. 631; 47 Am.Jur., Searches and Seizures, Sec. 71; 79 C.J.S., Searches and Seizures, § 62."

Defendant James Hamilton, in reply to an inquiry about whether he had driven the Cadillac to the place where the officers took custody of it, answered that he had driven the car to that place. When one of the officers requested permission to search the car, James Hamilton said, "Have you got a search warrant?" The officer replied that he "did not, but we would get a search warrant." James Hamilton replied, "There's no need of that. You can search." James Hamilton then handed the car keys to Detective Hoyle and the search was made.

It is generally held that the owner or occupant of premises, or one in charge thereof, may consent to a search of such premises, and such consent will render competent evidence thus obtained. Consent to the search dispenses with the necessity of a search warrant altogether. State v. Moore, 240 N.C. 749, 83 S.E.2d 912. The defendant James Hamilton consented to the search now complained of and thereby waived the necessity for a search warrant.

Cecil and Lexy Hamilton, according to their statements, were passengers in the car, traveling with their brother James Hamilton, and connected themselves with the tools and implements found therein, claiming ownership of some of the articles and stating that a company they operated in Maryland owned the remainder of them. Nevertheless, Cecil and Lexy Hamilton had no right to object to the search of James Hamilton's car. Their rights were not invaded. A guest or passenger in an automobile has no grounds for objection to a search of the car by a peace officer. State v. McPeak, supra.

This assignment of error is overruled.

The defendants' fourth assignment of error is to the overruling of their motion to be permitted to examine the FBI reports and notes prior to the trial. However, the defendants did not assert that access to such reports was necessary for the preparation of their defense. They do not so contend now. It will also be noted that counsel for each defendant declined to cross examine FBI Agent Johnson as to his testimony or his notes. Moreover, the defendants do not cite any authority in support of this assignment of error, and the same is overruled. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810.

Assignment of error No. 5 relates to defendants' motion for a continuance which was denied.

The defendants were arrested on 23 February 1964. The record reveals that on or before 26 February 1964 each defendant had employed counsel. It is further disclosed by the record that at the session of the Superior Court of Nash County at which the defendants were tried, the three defendants had some eleven cases pending against them. In the meantime, defendants' counsel had had more than three months to prepare for trial; in fact, the only basis for the request for a continuance was the fact that the solicitor did not inform them until 29 May 1964 that probably only the cases involving the breaking and entering, larceny and safe-breaking, et cetera, at the M. C. Braswell Company would be tried at the June 1964 Criminal Session of the Nash Superior Court. Furthermore, the bills of indictment upon which these defendants were tried had been returned at the March-April 1964 Session of the Superior Court of Nash County.

"A motion for a continuance is addressed to the sound discretion of the trial court and the denial of the motion will not be disturbed in the absence of a showing of abuse of discretion or that defendant has been deprived of a fair trial." Supplement to Vol. I, Strong's North Carolina Index, § 86, page 249; State v. Patton, 260 N.C. 359, 132 S.E.2d 891; State v. Stroud, 254 N.C. 765, 119 S.E.2d 907; State v. Kirkman, 252 N.C. 781, 114 S.E.2d 633.

We hold that this assignment of error is feckless and is, therefor, overruled.

The defendants assign as error the failure of the court below to sustain their motion for sequestration of the State's witnesses.

Under our decisions, the sequestration of witnesses is not a matter of right but of discretion on the part of the trial judge. The exercise of such discretion is not reviewable in the absence of abuse of discretion. No abuse of discretion is shown in this respect on the record before us. State v. Spencer, 239 N.C. 604, 80 S.E. 2d 670, and cited cases.

This assignment of error is likewise overruled.

The defendants set out numerous assignments of error challenging the admissibility of the State's evidence. In fact, the admissibility of practically all of the State's evidence is challenged, a large part of which is set out in question and answer form, contrary to the requirements of Rule 19(4) of the Rules of Practice in the Supreme Court, 254 N.C. at page 800. The objection to the admission of a substantial part of the evidence is based on the contention that the defendants were unlawfully arrested without a warrant and that the evidence obtained in searching the automobile involved was inadmissible because such evidence was obtained without a search warrant. In view of the disposition which we have heretofore made with respect to these objections, we hold that these assignments of error are without merit. Moreover, most of them are broadside and do not conform to the requirements of the Rules of this Court.

Assignments of error Nos. 25 through 35 are directed to the failure of the court below to sustain defendants' respective motions for judgment as of nonsuit. The defendants contend that the evidence offered in the trial below is all circumstantial and raises only conjecture and speculation as to the guilt of the defendants and is, therefore, insufficient to warrant its submission to the jury.

We concede that the State relied on circumstantial evidence in the trial below. However, in criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. The weight of such evidence is for the jury.

In the case of State v. Alston, 233 N.C. 341, 64 S.E.2d 3, this Court said:

"True, the verdicts here rest entirely upon circumstantial evidence, but ``Circumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth, but it is essential, and, when properly understood and applied, highly satisfactory in matters of the gravest moment.' State v. Brackville, 106 N.C. 701, 11 S.E. 284; State v. Cash, 219 N.C. 818, 15 S.E.2d 277. ``In some classes of cases the chain of evidence is said to be no stronger than the weakest link, but this is not always true, for sometimes facts, which seem weak by themselves, may be woven together like twigs in a bundle, or wires in a cable, and so a strong case may be constructed of facts which would be weak by themselves.' Lockhart, North Carolina Handbook of Evidence, 2d Ed., Sec. 266, p. 316."

The three defendants are brothers. The evidence tends to show that they were traveling together and were returning from a trip to Florida; that they "cased" the Braswell store on Saturday morning, 22 February 1964. Two chisels from the Braswell store were found in the glove compartment of defendants' car. The punch found in the defendants' car was identified by the FBI agent as the one used on the tumbler nest from the Braswell safe. Defendants stated to the officers that they were together all during Saturday night; that no one else had used the 1963 Cadillac. The car in which they were traveling contained many tools and implements commonly used by persons for breaking, entering and safecracking. Either personal ownership of these tools was claimed or that they belonged to a business operated by them in Maryland.

When all of the evidence adduced in the trial below is considered in the light most favorable to the State, as it must be on motion for judgment as of nonsuit, we hold that it was sufficient to carry the case to the jury against each of these defendants on the charges set out in the respective bills of indictment. State v. Alston, supra; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625; State v. Ham, 224 N.C. 128, 29 S.E.2d 449.

All these assignments of error are overruled.

Defendants' assignment of error No. 36 purports to challenge the correctness of the court's charge to the jury. Under this one assignment of error the appellants rely upon 49 exceptions upon which they undertake to raise various and sundry questions. Many of these exceptions are to portions of the charge covering several pages of the record. If any portion of the charge within an exception is correct, the exception must fail. State v. Atkins, 242 N.C. 294, 87 S.E.2d 507. Then, in assignment of error No. 37, the appellants purport to except to the charge in its entirety.

This Court has tried repeatedly to impress upon the members of the Bar that "an assignment of error must present a single question of law for consideration by the court." An assignment which attempts to raise several questions is broadside. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Suits v. Insurance Co., 241 N.C. 483, 85 S.E.2d 602; Spears v. Randolph, 241 N.C. 659, 86 S.E.2d 263; State v. Atkins, supra; Rigsbee v. Perkins, 242 N.C. 502, 87 S.E.2d 926; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Weavil v. Trading Post, 245 N.C. 106, 95 S.E.2d 533; Gurganus v. Trust Co., 246 N.C. 655, 100 S.E.2d 81; Hayes v. Bon Marche, 247 N.C. 124, 100 S.E.2d 213; Bulman v. Baptist Convention, 248 N.C. 392, 103 S.E.2d 487; Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509; Horton v. Redevelopment Commission, 262 N.C. 306, 137 S.E.2d 115.

An appellant may group a number of exceptions under a single assignment of error when, and only when, such exceptions relate to the single question of law raised by the assignment of error. Dobias v. White, supra.

Assignments of error Nos. 36 and 37 are overruled. Even so, we find nothing in the court's charge in the trial below that in our opinion is prejudicial to these defendants or any one of them.

We have had considerable difficulty with the record and defendants' brief in this case. The record consists of 331 pages, and while the evidence covers only 112 pages of the record, the assignments of error as grouped and set out in the record, cover 129 pages. Moreover, while the defendants' brief consists of 99 pages, many of the 389 exceptions set out in the record and in the assignments of error have not been brought forward and discussed in the brief, as required by the Rules of this Court, and will, therefore, be deemed abandoned. Rules of Practice in the Supreme Court, 254 N.C. 810.

We find no error in the trial below that in our opinion would justify a new trial.

No error.