State v. Shanklin

193 S.E.2d 341 (1972) 16 N.C. App. 712

STATE of North Carolina
v.
John Robert SHANKLIN and James Ronald Cole.

No. 7215SC793.

Court of Appeals of North Carolina.

December 20, 1972. Certiorari Denied February 6, 1973.

Atty. Gen. Robert Morgan by James E. Magner, Jr., Asst. Atty. Gen., for the State.

John H. Snyder, Graham, for defendant appellants.

Certiorari Denied by Supreme Court February 6, 1973.

VAUGHN, Judge.

Defendants' first two assignments of error challenge the denial of motions to quash the respective bills of indictment. Defendants argue that the location of the building allegedly broken into is not stated and that the ownership of the property alleged to have been stolen is not indicated. The bill of indictment must allege all essential elements of the alleged offense with sufficient certainty so as to identify the offense, protect the accused from being twice placed in jeopardy, enable the accused to prepare for trial and support a judgment entered upon a plea or conviction. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897; State v. Carroll, 10 N.C.App. 143, 178 S.E.2d 10. A motion to quash the bill of indictment is a proper method by which the question of the sufficiency of the bill of indictment may be raised. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688; State v. Roper, 3 N.C.App. 94, 164 S.E.2d 95. Defendants' argument is without merit. Each bill of indictment recites, in pertinent part, as to each respective defendant:

"That [name of defendant] late of the County of Orange on the 14th day of January, 1972, with force and arms at and in the County aforesaid, a certain building occupied by one E. M. Smith trading as E. M. Smith and Son Grocery wherein merchandise, chattels, money, valuable securities and other personal property were being well kept, unlawfully, wilfully, and feloniously did break and enter with intent to steal, take and carry away the merchandise, chattels, money, valuable securities and other personal property of the said, E. M. Smith against the form and Statute in such case made and provided and against the peace and dignity of the State." [emphasis added].

Furthermore, each indictment also twice lists specific property of the value of $800.00 "of the goods, chattels and moneys of the said E. M. Smith." The body of each bill of indictment clearly identifies the county in which the subject building is located and identifies the name of the business carried on in that building and also identifies E. M. Smith as owner of the property allegedly taken from the building. We hold the descriptions in the bills of indictment are sufficient. State v. Roper, supra; State v. Carroll, supra. At the same time, we take this opportunity to repeat that the better practice would be to identify the premises by street address, highway address, rural road address or some clear description and designation to set the subject premises apart from like and other structures. State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105.

Defendants' third assignment of error attacks the denial of their motion to suppress evidence obtained through the use of a search warrant which defendants contend was not issued on probable cause. In support of their position, defendants cite United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723; Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; and Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159. Each deals with the sufficiency of affidavits used to support the issuance of a search warrant. As to the point raised in Aguilar, one affidavit in the present case contained the following:

"Information was received from a reliable informer that he had seen part of the stolen property in [the trailer occupied by John Robert Shanklin.] Deputy McCullock has used information received from this same informer in the past and has gotten convictions from the information."

The section in brackets above was replaced in the other affidavit with the words "Roland Cole (sic) possession." The last sentence of the second affidavit read: "Deputy McCullock has used this informer in the past and has gotten conviction (sic) on information that was received from this informer. The Spinelli case, supra, requires that in the absence of a statement by the informer detailing the manner in which the information was gathered, it is especially important that he describe the accused's criminal activities in sufficient detail that the magistrate may know he is acting on something more substantial than a casual rumor or the accused's general reputation. Nathanson, supra, held that affirmation of suspicion and belief, standing alone, was an insufficient basis upon which to issue a search warrant. In the present case, however, the information received indicates the informant had seen part of the stolen property. The magistrate could reasonably infer from the details recited in the affidavit that the informant had gained his information in a reliable way. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327. An affidavit containing information within the personal knowledge of the informant and similar to the affidavit in the present case was upheld as sufficient to indicate the basis of a finding of probable cause in State v. Moye, 12 N.C.App. 178, 182 S.E.2d 814. The date of "Friday morning 1-14-72" is recited as the date of the alleged crime in each affidavit and the date of the affidavit was 20 January 1972. The observations had to have been made within that six day period and we hold that observations made within that period were recent enough to satisfy the standard of Harris.

We hold that the information contained in each affidavit was sufficient for the magistrate to find probable cause for the issuance of the search warrants for the premises of the respective defendants. It then follows that it was not error to deny defendants' motion to suppress evidence obtained through the use of these search warrants. Defendants' third assignment of error is without merit.

Defendants' fifth assignment of error alleges that the State had failed to particularly describe the items found and taken during the searches and that "the search made was a general search" in violation of the Fourth Amendment to the Constitution of the United States. It is required by G. S. § 15-26(a) that:

"(a) The search warrant must describe with reasonable certainty the person, premises, or other place to be searched and the contraband, instrumentality, or evidence for which the search is to be made."

"The requirement that warrants shall particularly describe the things to be seized is to prevent the seizure of one thing under a warrant describing another and to leave nothing to the discretion of the officer executing the warrant in determining what is to be taken. Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927)." State v. Foye, 14 N.C. App. 200, 205, 188 S.E.2d 67, 70. The description of the items to be searched for, as well as a description of the place to be searched, may be incorporated in the warrant by reference to the affidavit. State v. Flowers, 12 N.C.App. 487, 183 S.E.2d 820, cert. den. 279 N.C. 728, 184 S.E.2d 885. In the present case, each affidavit to obtain a search warrant and each warrant for arrest of the respective defendants incorporates by reference the attached lists of goods allegedly taken. Each such list contains approximately sixty individual entries containing, where appropriate, the generic name of the items and the brand name and individual price. The requirements of G.S. § 15-26(a) were satisfied by the affidavits and attached lists in the present case. Defendants point out, however, that one officer testified that certain items not on the lists attached to the warrants were taken during the search of defendant Cole's premises. From this, they argue that the entire search was unreasonable and in violation of the Fourth Amendment. This contention is without merit.

Defendants' final assignments of error are directed against questions asked by the solicitor of defendant Cole on cross-examination. Three questions were presented, each asking defendant Cole if he had broken into one of three specific places of business. Defendant responded in the negative to each question. A person charged with the commission of a crime is, at his own request, a competent witness but, if he is examined as a witness, he shall be subject to cross-examination as are other witnesses. In order to impeach a defendant's credibility as a witness, the solicitor is permitted to cross-examine the defendant as to collateral matters, including other criminal offenses and degrading actions, if the questions are based upon information and are asked in good faith. 2 Strong, N.C. Index 2d, Criminal Law § 86, p. 607. The questions related solely to what the witness had done, not to what others had accused him of doing and, in the absence of a showing of bad faith, were proper. State v. Griffin, 201 N.C. 541, 160 S.E. 826; State v. Williams, 279 N.C. 663, 185 S.E.2d 174. Defendants' sixth, seventh and eighth assignments of error are overruled.

No prejudicial error has been made to appear.

No error.

BRITT and PARKER, JJ., concur.