State v. Boyd

• Decision Date: 28 April 1943
• Docket Number: 435,436.
• Parties: STATE v. BOYD et al.
• Court: North Carolina Supreme Court

25 S.E.2d 456

223 N.C. 79

STATE v. BOYD et al.

Nos. 435, 436.

Supreme Court of North Carolina

April 28, 1943

Criminal prosecution charging defendants with having in their joint possession, without lawful excuse, certain implements of burglary. C.S. § 4236.

The implements, in possession of which defendants are charged to have been found in Franklin County, enumerated in the bill of indictments are: "3 pistols with cartridges for same, bolt clippers, wrecking bar, two big screwdrivers, 2 pairs of gloves and flashlights, blackjack brace and bit, and pliers or nippers and other implements of dangerous and offensive nature fitted and designed for use in burglary or other housebreaking or for use in burglary with explosives".

Upon the trial in Superior Court evidence offered by the State through the witnesses, State Highway Patrolman M.H. Bynum and one S.T. Denton, tends to show these facts "Around" 12 o'clock on the night of April 16 1942, Patrolman Bynum, acting in his official capacity, and accompanied by Denton, seeing two cars, a Pontiac and a '41 Plymouth, "parked just beyond the monument on Main Street in Louisburg", "came on back down the street and pulled into a service station to wait for them to come by. They came by pretty soon". The patrolman "checked the Pontiac" as it went out Nash Street and found that it was occupied, and being driven by "a fellow Lassiter". Then the patrolman "went to check the '41 Plymouth". It "had come on down in front of the Big Apple Cafe", and the patrolman "touched the siren and they pulled up along there at the Big Apple". Defendant Wilborn was driving the car, and defendant Boyd was on the right front seat of it. No one else was in the car. This was not over ten minutes after the cars were seen near the monument. When the patrolman came up to the car he asked Wilborn if he objected to his car being searched, to which Wilborn "said he did not", and got out of the car. Whereupon, the patrolman, upon looking in the back of the car, found about a quart of whiskey on the floor back of Wilborn, and, picking up his overcoat, found a pistol in it. The patrolman then arrested Wilborn.

At that time the sheriff, having heard the siren, had "walked out there". Then the patrolman had Boyd to get out of the car, and, finding in "the glove compartment" "a flashlight and another pistol and a blackjack" he "put them both under arrest", walked with them to, and put them in jail. Denton, following closely, drove the car to the jail. Up to that time the officer had found only the whiskey, flashlight, two pistols and blackjack, as above stated. But after defendants were locked up, the officers gave "the car a thorough check". The back seat cushion was out. In the car they found these articles, in addition to those above enumerated: "a bolt cutter *** under the mat *** on the floor, under boot in the trunk", "a large screwdriver in the trunk"; "wrecking bar *** in the boot"; "brace and bit"; "one pistol *** kind of rusty *** in the boot *** behind the tire *** it was loaded"; "a pair of pliers and screwdriver in the boot"; a "straw hat", and a "slicker hat"; two pairs of gloves, one in the glove compartment and the other on the floor in the back; another flashlight "in the seat"; and a "fan belt in the trunk". (Each of these articles was introduced in evidence as exhibits).

The patrolman testified that when he stopped the defendants, Wilborn said, in the presence, and within the hearing of Boyd, that "they had that stuff in there for their protection"; that "they had been stopped with some liquor and had some liquor taken from them"; that "they carried the gun for his own protection"; that, on being asked what they were doing down there, "Wilborn said he had started to Rocky Mount to get a load of liquor"; that, in reply to question of patrolman as to "why he didn't go down 301, it was so much nearer", Wilborn "said he wanted to see a man in Henderson, so he came there"; and that, on being asked who the man was in the other car, Wilborn "said he didn't know him.--just happened to run up together and they were both lost", but that "when some officers from Virginia came down and questioned them about it" "they later told me who he was".

And on cross-examination, in pertinent part, the patrolman continued: "Mr. Boyd said he did not know anything about any of it, said he was just riding ***. They didn't make any effort to get away or make any objection to me searching the car or make any motion that I would construe as an attempt to get away *** The bolt clippers are what is known as a bolt clipper or cutter, is used for cutting bolts, are part of a mechanic's tools,--you can use them to cut most anything--they are used around a garage ***. The brace and bit is a common tool of the carpenter, I would say so ***. The screwdriver you see in every garage and in homes, *** that is a very common tool ***. I believe the wrecking bar is an ordinary wrecking bar,--nothing unusual about it *** a lot of mechanics have them and use them ***. This little screwdriver is an ordinary screwdriver ***. You can buy them anywhere, and the same thing about the pliers,--they are used around garages and filling stations, and carpenters and electricians use them--everyone should have flashlights. I do not recall that the glove compartment was difficult to open I mashed the button and *** it came open very easy *** Mr. Wilborn told me that he had the pistol for protection,--that he had some liquor taken off of him ***. Mr. Boyd said that he was just riding with him as a passenger. Mr. Wilborn said he was a mechanic. That was what he said that he had followed the trade of a mechanic for a long number of years and these were his tools ***. I didn't find among these tools any sawed-off shotguns, or any extra ammunition for the pistols, or any nitroglycerine or any ammonia, any butcher knife, any chisels, drill punches, soap, wire or rope, eye-droppers, dynamite caps or fuses, sledge-hammers, breast drill, drill bits. No sir, I didn't find any of the articles you have called over." And on redirect examination the Patrolman said: "I did not find any machine guns *** 75 MM cannons *** any shotguns."

The testimony of S.T. Denton, as contained in the record, is, in the main, in corroboration of the patrolman in identifying the articles found in the car.

When the State rested its case, defendants and each of them moved for judgment as of nonsuit. C.S. § 4643. The motion was denied and defendants excepted.

Verdict: Guilty as charged in the bill of indictment.

Judgment: As to defendant Moffitt Dotson Wilborn: Confinement in State's Prison at Raleigh for a period of not less than 10 nor more than 12 years. As to defendant Mark Harvey Boyd: Confinement in State's Prison at Raleigh for a period of not less than 7 nor more than 10 years.

Though indicted in the same bill and tried together, defendants separately appeal to the Supreme Court and bring up separate records, identical in all respects except as to judgment, and separately assign error.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

Yarborough & Yarborough, of Raleigh, for defendants-appellants Boyd and Wilborn.

WINBORNE Justice.

Defendants, in the main, stress for error, and properly so, the refusal of the court to grant their motions under C.S. § 4643 for judgment of nonsuit.

In considering motion for judgment of nonsuit under C.S. § 4643 the general rule as stated in State v. Johnson, 199 N.C. 429, 154 S.E. 730, 731, and in numerous other decisions of this court, is that "if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury". But where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed. State v. Johnson, supra, and cases cited. See State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819; and also State v. Vinson, 63 N.C. 335; State v. Sigmon, 190 N.C. 684, 130 S.E. 854; State v. Montague, 195 N.C. 20, 141 S.E. 285; State v. Madden, 212 N.C. 56, 192 S.E. 859; State v. Shelnutt, 217 N.C. 274, 7 S.E.2d 561; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Goodman, 220 N.C. 250, 17 S.E.2d 8; State v. Penry, 220 N.C. 248, 17 S.E.2d 4.

Also, on a motion for judgment as of nonsuit, under C.S. § 4643, the rule is, as stated in State v. Fulcher, 184 N.C. 663, 113 S.E. 769, 770, "that, where a complete defense is established by the state's evidence, a defendant should be allowed to avail himself of such defense". See, also, State v. Hedden, 187 N.C. 803, 123 S.E. 65; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; State v. Todd, supra.

In the Todd case, applying this principle to an alleged...