State v. Bovender

• Decision Date: 07 June 1951
• Docket Number: No. 723,723
• Citation: 65 S.E.2d 323,233 N.C. 683
• Parties: STATE, v. BOVENDER et al.
• Court: North Carolina Supreme Court

Page 323

65 S.E.2d 323

233 N.C. 683

STATE, v. BOVENDER et al.

No. 723

Supreme Court of North Carolina.

June 7, 1951

Harry McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty Gen. for State.

Jno. D. Slawter and Joe W. Johnson, Winston-Salem, for defendants, appellants.

DEVIN, Justice.

The evidence of defendant Bovender, an accomplice, who pleaded guilty and testified for the State, was sufficient to carry the case to the jury on all counts, State v. Hale, 231 N.C. 412, 57 S.E.2d 322; State v. Ashburn, 187 N.C. 717, 122 S.E. 833, and there was other evidence tending to corroborate this witness and to support the verdict.

The zeal of counsel for the convicted defendants is manifest by the number of assignments of error they have brought to our attention in the effort to secure a new trial for their clients. Errors assigned are fifty-six in number, but an examination shows some of them are based on exceptions to the exclusion of testimony which was afterward admitted; others relate to excluded questions to which the record does not disclose the answer or what response would have been made; while other exceptions not referred to in their brief are deemed abandoned. None of these require specific elaboration. However, some of the exceptions noted at the trial which are discussed in appellants' brief require consideration.

During the taking of the State's evidence a dollar bill which a witness testified he had 'fished' out of the safe after its recovery, was offered in evidence by the solicitor. When counsel for defendants sought at the time to exhibit this to the jury the court stopped him, reminding him he was not offering evidence and it was not for him to exhibit it at that time. This was a matter in the discretion of the court in the orderly conduct of the trial.

Defendants noted exception to evidence that witness Bovender had shown the officers the places where the stolen safe had been thrown off and later hidden in sawdust. This exception was on the view that this was after the consummation of the alleged conspiracy and incompetent against the defendants. But this was testimony as to facts within the witness's personal knowledge and no declaration or act of either of his co-conspirators since the accomplishment of the purposes of the conspiracy was offered. The principle invoked is inapplicable. Likewise it was competent to elicit from this witness in corroboration that he had previously stated to the officers the facts about which he was testifying, and for the officers in corroboration to testify what he had told them. State v. Spencer, 176 N.C. 709, 97 S.E. 155; Stansbury, sec. 51.

Defendants complain that the court refused to allow them to cross-examine Bovender as to what statement he had made in the City Court on a particular point, but the record shows when the question was repeated the witness replied he did not remember. Also, exception was noted to the refusal of the court to permit this witness to testify about the amount of his bond and that of his co-defendants. It appeared, however, that the witness did testify that the amount of his bond was $5000, and that he heard in the City Court the other defendants' bonds announced as $15,000. It later appeared that the bonds of Hale and Irvin King were fixed at $12,000, and Riley King gave a $10,000 cash bond. Moreover the bond of Bovender was introduced in evidence. It would seem defendants obtained whatever benefit there was in the fact that Bovender's bond had been reduced after he testified in the City Court. No harm to the defendants may be predicated on the court's ruling on this score. Nor is there cause for complaint that the court remarked it was immaterial who signed his bond as the bond admitted in evidence shows it was executed by a bonding corporation having no connection with the case.

The defendants asked officer Burke if the solicitor had talked to him about Bovender's bond. Objection was sustained and counsel permitted to put in the record the expected answer, but this was not done, and the record is silent as to what the witness would have said. A similar question, with same ruling, was asked officer Carter, and again the record is silent. We do not think defendants are in a position to complain. State v. Ashburn, 187 N.C. 717, 722, 122 S.E. 833.

Defendants excepted for that Mrs. Riley King was not permitted to testify how long defendants' witness Brown had been living in their home and how long he had known her husband, but later Brown testified without objection he had been living there since December 1949, and knew Riley King well for that length of time. At the time this evidence was first offered, its materiality was not apparent.

Bovender had testified that on the Thursday night December 28th when the safe was brought to the Laundry Company's garage and opened and subsequently thrown in the river the weather was cold, but he did not think there was any sleet and that the ground was dry. He said he did not remember what kind of night it was. To contradict him and to show the condition of the weather defendants called a witness, Wiley Sims, who testified he was meteorologist in charge of the weather records of the United States Weather Bureau at a local airport. Asked what the weather was on Thursday night December 28th, he replied: 'I have a certified copy here.' He said he kept the records and they were at his office. The court ruled if he knew of his own knowledge he could testify but if he kept the record the record would be the best evidence, and that he could not testify from a copy. The witness then said he had an independent recollection of the weather on the night of December 28th, and testified that on that night the temperature was below freezing, that there was freezing rain during the early part of the night and up to 1:00 A.M.; that there was a trace of ice on the ground, and the streets were slippery and most transportation stopped. Defendants excepted to the ruling of the court on the ground that the court had refused to allow defendants to introduce a certified copy of the weather report for this date as authorized by G.S. § 8-35. But the record does not show that such a certified copy was offered. The only question presented to the court below seems to have been whether the witness could testify as to weather conditions on that night from a copy of the record or from his independent recollection. A copy of the record of the weather report is included in the record, but it does not affirmatively appear that it was offered as a properly authenticated copy of a public record in accordance with the statute G.S. § 8-35, and the questions debated in defendants' brief do not appear to have been raised by the evidence offered. Stansbury, sec. 153; kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871. See also Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 61 S.E.2d 895. However, all the facts the copy referred to by the witness would have disclosed were testified by him from his personal knowledge, and defendants introduced six other witnesses who testified the weather on this occasion was as described by Sims and as shown on the copy set out in the record. We perceive no resultant harm to the defendants' defense on this point.

Defendants contend they were prejudiced by the action of the court in sustaining objection to the statement made by defendants' counsel, during his argument to the jury, that 'the law says no man has to take the witness stand.' The statute G.S. § 84-14 which places certain limitations on arguments of counsel to the jury concludes with this sentence: 'In jury trials the whole case as well of law as of fact may be argued to the jury.' The right of counsel to state in his argument to the jury what he...