State v. Old

157 S.E.2d 651 (1967) 272 N.C. 42

STATE of North Carolina
v.
Grady Worth OLD.

No. 7.

Supreme Court of North Carolina.

November 22, 1967.

T. W. Bruton, Atty. Gen., George A. Goodwyn, Asst. Atty. Gen., for the State.

John T. Chaffin, Elizabeth City, for defendant-appellant.

HIGGINS, Justice:

The record, including the corrections, covers almost 300 pages. Defense counsel, alert to the interests of his client at all stages of the trial, noted 275 exceptions. They are presented here for review under 65 assignments of error, most of which are discussed in the defendant's carefully prepared brief. We have examined each assignment. Those not discussed have been found to be without merit.

The defendant assigns as error the pre-trial order by the resident judge which committed the defendant to a state hospital for the purpose of determining his capacity to stand trial. This procedure was a precautionary measure on the part of the judge and is specially authorized by G.S. § 122-91. State v. Arnold, 258 N.C. 563, 129 S.E.2d 229.

Judge Peel consolidated for trial the two charges of felonious assault on Taylor and Walston, and the capital charge of murder. The assault on Taylor was charged in the warrant which officers Walston and Williams were attempting to serve when the shot was fired at Walston and Williams was killed. The three charges were so connected and tied together that evidence of each offense fits into and complements the others. Evidence of the entire episode is competent on the question of identification. In these circumstances, joinder is authorized by G. S. § 15-52. State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. Ordinarily, and unless as here, the evidence showing guilt of a minor offense fits into the proof on the capital charge, the minor offenses should not be included.

Numerous exceptions and assignments of error are based on the admission of evidence. While the witness Taylor saw the defendant armed with the rifle outside his window on the occasion of the shooting into his bedroom, there was no witness able to say the defendant fired the shots that missed officer Walston and felled officer Williams. The State, therefore, had to rely on circumstantial evidence to fix on the defendant responsibility for these shootings. Many circumstances were detailed in the evidence which, standing alone, were of small moment, but when they were fitted together, they complemented each other in such manner as rendered them sufficient to warrant the jury in finding the defendant did the shooting. While no motive appears for the assault on Taylor, the evidence positively identified the defendant as the person who fired the shots. The State's evidence disclosed the defendant knew Montelle Williams and knew he was a deputy sheriff. The evidence was sufficient to warrant the jury in finding the shooting of the officers was for the purpose of preventing arrest. The totality of the circumstances detailed in the evidence was sufficient to identify the defendant as the perpetrator of the crimes although direct evidence of the assault on Walston and the fatal shooting of Williams is lacking. The defendant began the day by shooting at Taylor. Thereafter, from the defendant's house the shots were fired at officers Walston and Williams. These came from the front door of the defendant's house where he lived alone. A search of the house disclosed a rather formidable arsenal, and a repeating shotgun with an exploded shell in the chamber was lying on a chair. Outside the house, a distance of 100 to 150 feet from it, the officers found the defendant hiding in a ditch, armed with a repeating rifle with 10 cartridges in the magazine. Only after repeated demands that the defendant come out with his hands up did he heed the command and submit to arrest. This is only the framework of the State's case, supplemented by other details indicating guilt. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Moore, 262 N.C. 431, 137 S.E.2d 812; State v. Rowland, 263 N.C. 353, 139 S.E.2d 661; State v. Roux, 266 N.C. 555, 146 S.E.2d 654; State v. Williams, 269 N.C. 376, 152 S.E.2d 478.

The defendant's counsel cross-examined the witnesses about the guns found in the defendant's home, and was permitted rather wide leeway in his cross-examination. Inasmuch as the defendant did not testify, and did not offer evidence, only the State's evidence is involved. Nothing beneficial to the defendant was excluded on the State's objection. The officers entered and searched the defendant's home under the authority of a warrant charging the owner with a felony. The discovery of the guns and the empty shells resulted from the defendant's lawful entry into the house from which the shootings originated. The evidence as to the guns, etc. was not challenged by objection. Careful examination fails to disclose any prejudicial error in the admission of evidence.

In the assault cases, the Court instructed the jury the evidence was insufficient to make out a case of felonious assault. The Court correctly instructed the jury with respect to the lesser offenses involved in the assault indictments. Evidence was sufficient to support the verdicts finding the defendant guilty of assault with a deadly weapon on Taylor and on Walston. The sentence of two years imprisonment in each case run concurrently with each other and with the life sentence on the first degree murder charge.

The evidence, in our opinion, was sufficient to survive the motion to dismiss. Evidence of motive for the shots fired at Taylor was lacking. Evidence was ample from which the jury could reasonably find the shots at officers Walston and Williams were fired in an effort to resist arrest. Arrest was effected only after the officers discovered the defendant concealed in the ditch, surrounded him and notified him by megaphone to come out with his hands up. This he did, leaving his loaded rifle in his hiding place. The evidence qualifies as sufficient to permit its submission to the jury and to support the verdicts. State v. Lakey, 270 N.C. 786, 154 S.E.2d 900; Strong, N.C. Index, 2d Ed., Vol. 2, § 41, Lawyers Cooperative Publishing Company, 1967.

The defendant, by 14 assignments of error, challenges parts of the charge. However, when taken in its entirety, the charge covers all material parts of the evidence and correctly applies the law thereto. The charge is free from valid objection.

No error.