State v. Lewis

189 S.E.2d 216 (1972) 281 N.C. 564

STATE of North Carolina
v.
Eldon Bobby LEWIS.

No. 39.

Supreme Court of North Carolina.

June 16, 1972.

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

Sol G. Cherry, Public Defender, and James R. Nance, Fayetteville, of counsel, for defendant appellant.

LAKE, Justice.

"It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances—the time between the theft and the possession, the type of property involved, and its legitimate availability in the community." State v. Raynes, 272 N.C. 488, 158 S.E.2d 351; State v. Allison, 265 N.C. 512, 144 S.E.2d 578; Strong, N.C. Index, 2d, Larceny, § 5. To give rise to this presumption, it is not necessary that the stolen property be found actually in the hands of or on the person of the accused, it being sufficient if it was found in a container or place of deposit under his exclusive personal control. State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62. When it is established that a store or warehouse has been broken into and entered and that merchandise has been stolen therefrom, the discovery, soon after such theft of articles, so stolen, in the possession of the defendant raises a presumption that he is guilty both of the breaking and entering and of the larceny. State v. Allison, supra.

The court so instructed the jury in the present case. The defendant assigns this as error. He contends that there was no sufficient evidence that the tools, identified as having been stolen from the place of business of Builders Wholesale Supply and as having been found in the tool box in the trunk of the car in which the defendant was sitting, were in the possession of the defendant. There is no merit in this contention. While the defendant was not the driver, Officer Priest testified, without objection, that the car was "Mr. Lewis' car." He further testified that the tools, identified by the employee of Builders Wholesale Supply as having been stolen from its place of business, were found by him in the tool box in the trunk of the car. On cross-examination, the defendant's wife testified that the defendant kept his tool box in the trunk of the car and that he was the individual who "had the key for the car." Officer Priest testified that the defendant gave permission for the opening of the trunk of the car and actually opened it, whereupon the tools and tool box were observed by the officer. The defendant's wife testified that the driver was the defendant's friend. The evidence is ample to support a finding that the tools were in the possession of the defendant when discovered by Officer Priest. His unexplained possession of the stolen merchandise raised the presumption that the defendant was guilty both of the breaking and entering and of the larceny of the tools.

The defendant does not contend that the presence of the tools in the trunk of the car was discovered in the course of an unlawful search. The testimony of Officer Priest that the defendant, not only consented to the search but actually opened the trunk, himself, is uncontradicted. The record does not disclose that the defendant was under arrest at the time.

The defendant contends that the court erred in failing to strike the testimony of Officer Priest to the effect that a representative of Builders Wholesale Supply came to Elizabethtown and identified the tools in question and that, thereupon, Officer Priest delivered the tools to Sergeant Frye of the Cumberland County Sheriff's Department. He contends that this was incompetent as hearsay. There was no objection to the question which elicited this testimony. To some extent, the answer was not responsive to the question but there was no motion to strike until after a further question was propounded to the witness. The court overruled the motion to strike, saying, "It comes too late." In this there was no error. An objection to evidence not taken in apt time is waived. State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; Strong, N.C. Index, 2d, Trial, § 15; Stansbury, North Carolina Evidence, 2d Ed. § 27. Furthermore, had there been error in this ruling it would have been harmless since, thereafter, without objection, the tools in question were positively identified by Witness Hardison, an employee of Builders Wholesale Supply, as having come from its stock of merchandise.

Detective Sergeant Frye, an employee of the Cumberland County Sheriff's Department, testified, without objection, that following the defendant's arrest by Officer Priest, he observed the shoes worn by the defendant and could see that they were the same kind of shoes he was looking for in relation to the shoe print which he had observed on the ledger found near the rifled safe. He testified that he then asked the defendant for his shoes and the defendant gave them to him. The shoes so received from the defendant, having been identified by Sergeant Frye, and the ledger were admitted in evidence as exhibits of the State. Sergeant Frye then testified that he made a "visual comparison" between the shoes and the shoe print on the ledger. He was then asked, "What were your observations concerning [the ledger] and any comparison you made between the three items [the ledger and the shoes]?" Over objection, the witness testified, "From the best I can tell, it was the shoes I was looking for to the best of my knowledge." There was no error in the admission of this testimony. State v. Warren, 228 N.C. 22, 44 S.E.2d 207. Had there been error, Sergeant Frye not being qualified as an expert in the identification of footprints, it would be harmless in view of the subsequent detailed testimony by Special Agent Jones of the State Bureau of Investigation, a qualified expert in that field. Mr. Jones testified in detail as to identifying marks upon the defendant's left shoe, in relation to the print on the ledger, and stated his opinion to the effect that this shoe made the print. His testimony was clearly competent under the test laid down in State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, and applied in State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596, the latter case having a striking similarity to the present one.

Obviously, there was ample evidence to require the submission to the jury of the question of the defendant's guilt on each of the charges. There was no error in the denial of his motions for judgment on nonsuit.

We have considered each of the other assignments of error by the defendant and find no merit therein. No useful purpose would be served by a detailed discussion of any of them.

The defendant does not assign as error the imposition of the sentence of life imprisonment on the charge of safecracking. We nevertheless observe that G.S. § 14-89.1 provides that the punishment for this offense is "a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary." There was, therefore, no error of law in the imposition of the sentence to life imprisonment. The sentence having been lawfully imposed in the discretion of the trial judge, this Court has no authority to modify it. The trial judge in this, as in other criminal cases, has the opportunity to observe the defendant and to consider his former record of criminal convictions, if any, which the appellate court, being limited to the printed record before it, does not have. If the sentence imposed is unduly severe, the proper authority from which to seek relief on that count is the Board of Paroles.

No error.