State v. Black
| Decision Date | 25 May 1949 |
| Docket Number | 650 |
| Citation | 53 S.E.2d 443,230 N.C. 448 |
| Parties | STATE v. BLACK et al. |
| Court | North Carolina Supreme Court |
The defendants were tried upon consolidated indictments in which they were charged with these offenses: (1) Breaking into and entering the building of G. F. Waddell and wife, Goldie Waddell, with intent to commit the felony of larceny therein contrary to G.S. s 14-54; and (2) robbery with firearms in violation of G.S. s 14-87.
The State presented evidence at the trial indicating that the prosecuting witnesses, G. F. Waddell and his wife, Goldie Waddell, as partners, operated a restaurant known as 'Waddell's Stop-N-Eat' in a building standing beside United States Highways 29 and 70 about half way between Greensboro and High Point in Guilford County; that after the restaurant had been closed for business, to-wit, on the early morning of April 19, 1948, two men, who were masked and armed with pistols entered the building through a window, which they pried open, and took $1750 belonging to the prosecuting witnesses from the presence of Goldie Waddell and from the person of G. F Waddell by locking Goldie Waddell up in a closet and by beating, torturing, and threatening to shoot and kill G. F Waddell; and that thereafter the intruders fled with the stolen money, leaving the prosecuting witnesses bound and gagged. In testifying for the State at the trial, both G. F Waddell and Goldie Waddell positively identified the defendants as the perpetrators of the offenses set out above. Their evidence in this respect, however, was sharply contradicted by testimony adduced by the defendants tending to show that at the time in controversy they were at their respective homes in Wilmington, North Carolina, almost 200 miles distant from the restaurant.
On April 20, 1948, G. F. Waddell advised the State's witness, D. S. Lee, a deputy sheriff of Guilford County, that he suspected the guilty parties to be a third person, whom he named, and the defendant, Earl Black, who in time past had lived in Guilford County and patronized 'Waddell's Stop-N-Eat.' The record does not disclose, however, that this suspicion was communicated to the State Bureau of Investigation by the Sheriff of Guilford County, who sought assistance in ferreting out the perpetrators of the offenses in question.
The State Bureau of Investigation undertook to solve simultaneously the occurrence at 'Waddell's Stop-N-Eat' and a charge of the defendant, Earl Black, that on October 31, 1947, he was assaulted in a secret manner by some unknown person while standing on the driveway at his service station in Wilmington.
The State Bureau of Investigation made separate requests of the prosecuting witnesses and Earl Black to visit the Sherriff's Office in Fayetteville, North Carolina, with a view to determining whether or not certain men confined in the Cumberland County jail were guilty of complicity in the matters set forth above. It happened by apparent coincidence that the prosecuting witnesses and Earl Black, who was accompanied by his personal friend, the defendant, Charlie Fales, arrived at the Sheriff's Office in Fayetteville at precisely the same time. D. S. Lee and J. W. Donovant, another deputy sheriff of Guilford County, who had escorted the prosecuting witnesses from Greensboro to Fayetteville, and George Canady, the representative of the State Bureau of Investigation having these matters in charge, were present.
The State offered testimony at the trial tending to show that upon encountering Black and Fales at Fayetteville the prosecuting witnesses recognized that they were the men who had entered their restaurant and robbed them of $1750 on April 19, 1948, and that the prosecuting witnesses thereupon called Lee and Donovant aside and secretly informed them of that fact. The defendants elicited evidence on the cross-examination of the prosecuting witnesses and Donovant, who also testified for the State, that notwithstanding these facts no prosecution was instituted against the defendants until September 15, 1948, when warrants were issued against them upon complaints made by Deputy Sheriff Lee charging them with the offenses involved in this case.
The State thereupon called on Lee to explain 'the delay in the issuance of the warrants. ' He testified over the exceptions of the defendants that the following colloquy took place between him and George Canady, of the State Bureau of Investigation, immediately after he was advised by the prosecuting witnesses that the defendants were the men who had robbed them:
The conference between Lee and Canady occurred out of the presence of the defendants, and Canady did not testify on the trial. In admitting Lee's evidence as to his colloquy with Canady, the court gave this instruction to the jury:
The jury found the defendants guilty upon both of the charges, the court sentenced the defendants to imprisonment in the State's prison, and the defendants appealed, assigning as errors the evidence of the State's witness, D. S. Lee, as to his colloquy with Canady and certain excerpts from the charge.
Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Asst. Atty. Gen., for the State.
H. L. Koontz and C. L. Shuping, Greensboro, for defendant, appellants.
The defendants elicited the testimony relating to the delay in the commencement of the prosecution against them as an implied admission by conduct on the part of the State's witnesses that they were conscious of the weakness of the State's case against the defendants. Consequently, it became proper for the State to explain the delay, and to show that the inference which the defendants sought to draw from it was not warranted by the circumstances. Collins v Seaboard Air Line R. Co., 187 N.C. 141, 120 S.E. 824; McCraw v. Old North State Insurance Co., 78 N.C. 149; Wigmore on Evidence, 3rd Ed., section 284; Stansbury's North Carolina Evidence, section 178; 31 C.J.S....
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