State v. Lail

ARNOLD, Judge.

Defendant’s argument that hearsay testimony was admitted is without merit. None of the testimony which defendant challenges under this assignment of error falls within the definition of hearsay, that is, an assertion of a person other than the witness which is offered to prove the truth of the matter asserted. 1 Stansbury’s N.C. Evidence § 138 (Brandis rev. 1973). Two of the challenged statements are testimony as to what the witness told the defendant, the third is not an assertion, and the fourth is not offered to prove the truth of the matter asserted but merely to prove that a statement was made.

Defendant contends that the court improperly admitted into evidence testimony about the search of defendant’s vehicle which revealed the pistol. He would have us find that the warrantless search was unreasonable. However, our Supreme Court has indicated that “[i]n recognition of the mobility of automobiles, a search of an automobile without a warrant is constitutionally permissible if there is probable cause to make the search.” State v. Ratliff, 281 N.C. 397, 403, 189 S.E. 2d 179, 182 (1972) (emphasis in original). And there is ample evidentiary support here for the trial court’s conclusion that probable cause existed. Jones told OF ficer Sprott that he took part in the break-in, and that he gave the pistol he stole to defendant, who put it in his trousers. A pat-down of defendant revealed no weapon, but in response to Sprott’s question defendant pointed out his vehicle "fifteen to twenty feet from where he was at that point.” These facts are sufficient to give the officers probable cause to believe that their search of the vehicle would reveal “ ‘the instrumentality of a crime or evidence pertaining to a crime.’ ” Id. at 403, 189 S.E. 2d at 183, quoting Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 20 L.Ed. 2d 538, 88 S.Ct. 1472 (1968).

Nor does the fact that a number of officers were on the scene and, as defendant argues, “one or more of the officers could . . . have remained with the defendant’s vehicle while one or more of the officers left the scene to secure a search warrant” affect this result. “If there is probable cause to search an automobile, the officer may either seize and hold the vehicle before presenting the probable cause issue to a magistrate, or he may carry out an immediate search without a warrant.” State v. Ratliff, supra at 403, 189 S.E. 2d at 183.

David Jones was allowed to testify about the statement he gave Officer Sprott after he was taken into custody, and the jury was instructed that the statement was offered only as corroboration of Jones’ other testimony. Defendant argues that it was improper to admit corroborative testimony, since the witness had not been impeached. However, in North Carolina the scope of impeachment as a prerequisite to corroboration is extremely broad, see 1 Stansbury’s N.C. Evidence § 50 (Brandis rev. 1973), and recent cases ignore the requirement of impeachment altogether. E.g. State v. Fields, 10 N.C. App. 105, 177 S.E. 2d 724 (1970).

Moreover, we find no prejudice to defendant from the admission of the challenged testimony. Only one of the witness’s answers referred to defendant (“I told him that I sold [the pistol] to [defendant]”), and this evidence had already been admitted. Asked “[A]nd did you tell him anything about what if anything you all told [defendant] about where the gun came from?” Jones answered only, “I don’t believe so — not at the time.” We find no prejudicial error in the admission of the corroboration.

We have considered defendant’s other assignments of error, and we find that they are without merit.

No error.

Chief Judge MORRIS and Judge CLARK concur.