State v. Lentz

153 S.E.2d 864 (1967) 270 N.C. 122

STATE of North Carolina
v.
Charlie LENTZ and Willie Leon Williams.

No. 417.

Supreme Court of North Carolina.

April 19, 1967.

Randolph & Drum, by Clyde C. Randolph, Jr., Winston-Salem, for defendant appellant Charlie Lentz.

Booker & Sapp, by Robert H. Sapp, Winston-Salem, for the defendant appellant Willie Leon Williams.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

PLESS, Judge.

The defendants have presented one case on appeal, but each has filed a separate brief.

The case largely depends upon the identity of the persons who robbed Mrs. Mize. All of the elements of armed robbery are present, and the only seriously contested issue was the question "who did it?" Mrs. Mize, Mabelline Barringer and Herman Stimpson identified the defendants, while the defendant Lentz offered as an alibi that he was at the home of Victoria Carethers at the time, while Mary Rose Young and her two children testified that the defendant Williams was at her home at the time of the robbery.

Even though a defendant offers evidence of an alibi, he is not required to prove it. The burden is still cast upon the State to prove his guilt beyond a reasonable doubt. State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R. 2d 682; State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867; State v. Sheffield, 206 N.C. 374, 174 S.E. 105.

Lentz excepts to the admonishment of the Court that he answer the questions being propounded to James Carethers. The Court rather emphatically instructed the witness Carethers not to argue with the solicitor but to answer his questions. The Court has the right and the duty to require witnesses to answer the questions propounded, and in so doing there was no error. 88 C.J.S. Trial § 49(3).

Lentz also excepts to the admission of photographs of Mrs. Mize which showed the bruises and injury on her face. They were offered to illustrate the testimony of Mrs. Mize and were properly admitted for this purpose.

The defendant particularly complains that the picture showed the condition a week or so after the event rather than at the time of it. This point was made clear to the jury, and the Court was correct in its ruling. A witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury. Simpson v. American Oil Co., 219 N.C. 595, 14 S.E.2d 638. "It will not necessarily be excluded because * * * it was not made at the time of the event to which the testimony relates." Stansbury, N.C. Evidence, 2d Ed. § 34.

The defendant Lentz further excepts to the evidence of Mrs. Mize that she had told Mabelline Barringer that she was sure she was right in identifying Lentz. This feature of Mrs. Mize's testimony was the subject of examination and of cross examination several times. It must be recalled that the witness was testifying as to what she had said rather than attempting to corroborate somebody else as to what the other person had said. There is a distinction, since the State may lay the foundation for corroborating evidence in this manner even though the latter is not offered or is excluded because it does not corroborate." * * * it is settled by this court that a witness can corroborate himself by testifying that he had made the same statement to other parties. State v. Maultsby, 130 N.C. 664, 41 S.E. 97." State v. Journegan, 185 N.C. 700, 117 S.E. 27.

The State offered the testimony of Officer E. G. Cook that Lentz told him that he went to his brother's home about 8:00 o'clock; that a party was going on; that he got intoxicated and laid on the sofa and slept there. This was offered to contradict the evidence offered for Lentz that he was at the Carethers' home at the time of the robbery. The exception is based upon the claim that there was no finding by the court that Lentz's statement was voluntary. However, Officer Cook had previously testified that when he first talked with Lentz and Williams he had advised them of their right to remain silent; that anything they said could be used against them in court; that they were entitled to counsel; that if they could not afford counsel the court would appoint counsel for them, and the defendants could have counsel present at the interrogation. There was no request for findings by the court and no contradiction of this evidence by the defendants. The defendants' rights were thus protected and the exception is not sustained.

Mrs. Mize also identified Williams as the person wearing the red ski hood which she pulled up and saw his face while he was striking her. Williams claimed that he became drunk at the home of Mary Rose Young, laid down about 6:00 o'clock and did not awake until the following morning. The jury accepted the evidence for the State, and we now consider the exceptions raised in his behalf.

The defendant Gwyn, who was also convicted but did not appeal, testified that he knew that "I hadn't seen Leon Williams since he got back from the County Home." The solicitor then asked, "You say since he got back from the County Home?"—to which the witness replied, "That's right." The record merely shows that Gwyn made the above statements, which were apparently incidental, until it was repeated in response to the solicitor's question. While it is recognized that persons are sometimes sent to the county home to serve there instead of in prison, it is also true that county homes have paid employees and that persons are taken there because of ill health, old age, and poverty, and the court cannot assume the conditions under which Williams was at the county home. There was no objection or request to strike the first statement of the witness that Williams had been at the county home, and we cannot hold that this information, having been put before the jury without exception, becomes prejudicial when repeated.

Williams also excerpts to the failure of the court to instruct the jury that he might be found "guilty of some lesser degree of the offense charged: common-law robbery, attempted robbery, assault with a deadly weapon or simple assault."

Upon the evidence of the State, which was uncontradicted as to the event, and questioned only as to the perpetrators, all of the elements of the offense of armed robbery were clearly shown, and there was no evidence to indicate that any person committing the acts alleged by the State was guilty of any lesser offense, and the exception is overruled.

Both the defendants were identified by several persons as the ones who robbed Mrs. Mize. The defendants denied their guilt and offered evidence of an alibi. It thus became a question for the jury to determine, and it has done so by its verdict of guilty as to both of the defendants. Upon consideration of the record and the exceptions noted by the defendants, we are of the opinion, and so hold, that in their trial there was

No error.