State v. Phillips

189 S.E.2d 602 (1972)

STATE of North Carolina
v.
Jerome PHILLIPS.

No. 723SC74.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Denied August 31, 1972.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, for the State.

Owens & Browning, by Robert R. Browning, Greenville, for defendant appellant.

Certiorari Denied by Supreme Court August 31, 1972.

CAMPBELL, Judge.

Defendant first assigns as error the introduction into evidence of the television and vacuum cleaner alleged to have been taken from the City Electric Co. and the toaster found on the floor of the store. Defendant concedes that these items were relevant and material, but it is contended that they were not properly identified and therefore should not have been admitted into evidence.

The witness Flemming, an employee of the store, identified the television, the vacuum cleaner and the toaster as belonging to the City Electric Co. He testified that they had the box for the vacuum cleaner. On voir dire he also identified the television by model number. The witness Martin, a deputy sheriff, identified the television by comparing its serial number with the number he had copied from the bill of sale to City Electric Co. He also testified that he saw the vacuum cleaner box and stated its model number. It is noted that the toaster in question did not leave the premises of the store.

We are of the opinion that the items introduced into evidence were properly identified. Furthermore, the defendant was acquitted of the charge of felonious larceny and could not have been prejudiced by the introduction of items alleged to have been stolen from the store. While the toaster was used in proving the charge of felonious breaking and entering, it never left the premises and has been properly identified. This assignment of error is overruled.

Defendant's next assignment of error is to the admission of defendant's statement to Deputy Martin that he (defendant) had never been in the City Electric Co. in Ayden. Defendant contends that he was an indigent and that any statement made by him while in custody was inadmissible unless he had executed written waiver of counsel. Defendant relies on the case of State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).

The Lynch case is clearly distinguishable from the case at hand. Lynch forbids introduction of admissions made during in-custody interrogation when there has been no written waiver of counsel. In this case the defendant told the deputy that he had never been in the City Electric Co. store. This is not an admission, it is a denial. It is an exculpatory statement. "`Exculpatory statements, denying guilt, cannot be confessions. This ought to be plain enough, if legal terms are to have any meaning and if the spirit of the general principle is to be obeyed. This necessary limitation of the term "confession" is generally conceded.' III Wigmore on Evidence, 240." State v. Butler, 269 N.C. 483, 153 S.E.2d 70 (1967). A denial of guilt or a claim of innocence is not a confession of guilt and exculpatory statements are not within the common law and statutory rules relating to confessions. 23 C.J.S. Criminal Law § 816b.

In this case the defendant's statement was a denial, not an admission, and its introduction into evidence was not controlled by the rules relating to confessions. It was proper to allow the deputy to testify to the statement made by defendant. This assignment of error is overruled.

Defendant's final assignment of error is to the denial of his motion for nonsuit at the close of the State's evidence. Defendant contends that the evidence placing him inside of the City Electric Co. consisted of the fingerprints found on the toaster. It is argued that the toaster was readily available to any person entering the building and that the fingerprints found on the toaster, standing alone, should have no probative force and therefore there was insufficient evidence to be submitted to the jury. The defendant relies upon the case of State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948).

In the Minton case, defendant's fingerprints were found on a piece of glass which was broken out of the door through which entry had been obtained to an establishment called the Coastal Lunch. The piece of glass was from a pane located near the doorknob of the front door of the Coastal Lunch. The front door was used by customers of the Coastal Lunch and defendant had entered the premises as a customer earlier during the evening of the break-in.

In Minton, the Supreme Court was concerned that the fingerprints in question could have been made when defendant entered the Coastal Lunch as a customer and there was also an explanation for cuts found on defendant's hand. State v. Pittman, 10 N.C.App. 508, 179 S.E.2d 198 (1971).

In the case before us there is testimony that defendant walked by the store on two occasions the afternoon before the breakin, but he did not enter the store on these occasions. The toaster from which the fingerprints were taken was found on the floor after the break-in. One of the fingerprints found on the toaster was made in blood. There was no evidence to explain the cut on defendant's hand. The Minton case is clearly distinguishable from the case before us.

The circumstances under which defendant's fingerprints were found lead us to the conclusion that the defendant's fingerprints could have been impressed only at the time the crime was committed, and this is sufficient to support a conviction. State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). There is competent evidence to support the allegations in the indictment, and a motion for nonsuit was properly denied. State v. Reid, 230 N.C. 561, 53 S.E. 2d 849 (1949).

In this trial we find,

No error.

MALLARD, C. J., and BROCK, J., concur.