State v. Cox

• Decision Date: 10 May 1972
• Docket Number: No. 68,68
• Citation: 188 S.E.2d 356,281 N.C. 275
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dino Royal COX. STATE of North Carolina v. Wesley Conrad WARD, alias James Thomas. STATE of North Carolina v. James GARY, alias Timothy Johnson.

Page 356

188 S.E.2d 356

281 N.C. 275

STATE of North Carolina v. Dino Royal COX.

STATE of North Carolina v. Wesley Conrad WARD, alias James Thomas.

STATE of North Carolina v. James GARY, alias Timothy Johnson.

No. 68.

Supreme Court of North Carolina.

May 10, 1972.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Wallace C. Harrelson, Public Defender, and J. Dale Shepherd, Asst. Public Defender, for defendant appellants.

BOBBITT, Chief Justice.

In their brief, after stating quite accurately that they had brought forward 'numerous assignments of error,' defendants assert that 'the most prejudicial to the defendants were those that are brought forward from the charge.'

Initially, defendants stress the fact that, although the indictments charged that Mrs. Richardson was kidnapped on December 17, 1970, all the evidence tends to show this occurred on December 10, 1970. As noted in our preliminary statement, defense counsel stated that he was fully aware that the State contended the crime was committed on December 10, 1970. He now contends that the trial of this case upon an indictment charging that the offense was committed on December 17, 1970, 'played havoc with any alibi that the defendants might have had.' This contentions is without substance since defendants were arrested during the early morning of December 11, 1970, and thereafter were in the custody of State or federal officers. Time was not of the essence of the offense and no prejudice to defendants was caused by the clerical error.

Defendants' brief further asserts that the trial judge's 'clearest error' was in charging 'on two distinct separately indictable crimes (robbery and conspiracy) which neither of the defendants has ever been charged with . . ..' Although defendants were not charged with conspiracy or with bank robbery, the facts tending to prove defendants' participation in these two crimes constitute an integral part of the proof of the kidnapping for which they were indicted. The three crimes are so interwoven as to constitute one transaction or series of events. 'It was not necessary, in order to submit to the jury the law as to criminal conspiracy, that the bill specifically charge conspiracy, if the evidence was sufficient to warrant this view. State v. Triplett, 211 N.C. 105, 189 S.E. 123.' State v. Absher, 230 N.C. 598, 54 S.E.2d 922 (1949). There can be no doubt as to the sufficiency of the evidence to warrant findings that the men who robbed the bank were acting in furtherance of a common purpose, design and unlawful conspiracy, and that this unlawful conspiracy included the means for escape with the fruits of the robbery. The evidence was sufficient to support the conviction of each defendant of the crime of kidnapping on the legal principle that, in the accomplishment of the purpose and design of an unlawful conspiracy, each conspirator is responsible of the acts of his co-conspirators. Moreover, the judge correctly instructed the jury with reference to the principles of aiding and abetting in the commission of a felony. Apart from conspiracy, if the jury found that defendant Cox was guilty of the crime of kidnapping as principal, there was ample evidence to support the conviction of each of the others as an aider and abettor or principal in the second degree.

Defendants noted twenty exceptions to the charge. The excepts to which they relate constitute a major portion of the charge. Although all have been considered, further discussion of these exceptions is unnecessary. The instructions are in substantial accord with our decisions. The assignments relating thereto are without merit.

Mrs. Richardson and Mrs. Gray testified in detail as to what occurred at the bank when three men entered shortly after 4:30 p.m. on Thursday, December 10, 1970. The period covered by Mrs. Gray's testimony relates to what occurred until Mrs. Richardson was taken from the bank by the three robbers. Mrs. Richardson's testimony continues until she fell to the ground during the confrontation between the robbers and the pursuing officers. Both these witnesses testified they were unable to identify any of the defendants as being one of the three bank robbers.

Defendants excepted to and assigned as error all testimony of Mrs. Richardson and of Mrs. Gray referring to what 'he' or 'they' (that is, the unidentified robbers) did during the robbery of the bank and the kidnapping of Mrs. Richardson. Both women testified that the three men who robbed the bank were the men who kidnapped Mrs. Richardson. Their testimony was competent when considered in connection with other State's evidence identifying defendants as the persons who robbed the bank and kidnapped Mrs. Richardson. These assignments are without merit.

Defendants excepted to and assign as error the denial of their motions for a continuance and for a change of venue. These motions were addressed to the court's discretion. State v. Baldwin, 276 N.C. 690, 697, 174 S.E.2d 526, 531 (1970); State v. Ray, 274 N.C. 556, 568, 164 S.E.2d 457, 465 (1968). Defendants having failed to show abuse of discretion or prejudice, these assignments are overruled.

Defendants excepted to and assign as error the overruling of their objections to certain questions on the ground the solicitor was leading the witness. 'The allowance of leading question is a matter entirely within the discretion of the trial judge, and his rulings will not be disturbed on appeal, at least in the absence of abuse of discretion.' State v. Painter, 265 N.C. 277, 284, 144 S.E.2d 6, 11 (1965). Defendants having failed to show abuse of discretion or prejudice, these assignments are overruled.

Defendants excepted to and assign as error the denial of their motion that the court conduct a Voir dire hearing to determine the admissibility of Officer Ledbetter's identification testimony. Absent evidence that Ledbetter had identified defendants in some pretrial lineup or confrontation, there was no basis for any contention that his in-court identification was in any way affected by such lineup or confrontation. Hence, this assignment is overruled.

Defendants excepted to and assign as error the admission of Officer Anderson's in-court testimony that the three made occupants of the Buick were Cox, Ward and Johnson (Gary). Defense counsel obtained permission to cross-examine Anderson in the absence of the jury concerning his identification of defendants shortly after their arrest by Greensboro police officers. In the course of this cross-examination Anderson testified that early in the morning of December 11th, when traveling toward Greensboro, he received a call from the Greensboro police; and that, in response to this call, he went to Meredith Drive and there found defendants Cox, Ward and Johnson (Gary), each in the back seat of a police car. He testified unequivocally that he based his in-court identification of defendants on his observation of them at the time of the gunfight, when he was approximately two car lengths from them. He further testified that '(he) knew them when (he) saw them' on Meredith Drive. Immediately following this statement, Anderson was asked, 'Therefore, your testimony in court today, your identification is based partly on your observation of them in Greensboro in custody of the Greensboro police department?' Anderson answered: 'Yes, sir.' When considered in context, we attach no significance to this answer, except that Anderson was simply saying that the men whom he had pursued a few hours before were the identical men who were now seated in the police cars.

Defendants contend that Anderson's identification of defendants as the men whom he had pursued a few hours before was made under circumstances in the nature of a lineup or one-person confrontation; that defendants were not represented by counsel when Anderson identified them on Meredith Drive; and that the circumstances under which Anderson identified defendants were so suggestive as to render Anderson's identification of defendants...