State v. Dickens

• Decision Date: 12 May 1971
• Docket Number: No. 80,80
• Citation: 180 S.E.2d 844,278 N.C. 537
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Clifton Earl DICKENS.

Page 844

180 S.E.2d 844

278 N.C. 537

STATE of North Carolina v. Clifton Earl DICKENS.

No. 80.

Supreme Court of North Carolina.

May 12, 1971.

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

Edgar J. Gurganus, Williamston, for defendant.

BRANCH, Justice:

Defendant assigns as error the action of the trial judge in admitting into evidence, over objection, clothing worn by defendant when he was taken into custody a short time after the alleged crime.

It is well settled in North Carolina that clothing worn by a person while in custody under a valid arrest may be taken from him for examination, and, when otherwise competent, such clothing may be introduced into evidence at his trial. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. Defendant stressfully argues that he was not in custody under a valid arrest.

An arrest without a warrant except as authorized by statute is illegal. State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

G.S. § 15--41, in part, provides: 'A peace officer may without a warrant arrest a person: * * * (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.'

The courts have held that a description of an assailant's physical characteristics and his clothing may supply reasonable grounds for believing that he had committed a felony.

In State v. Tippett, supra, police officers were informed that a felony had been committed by a barefooted white man wearing coveralls. Police officers arrested the defendant without a warrant upon finding him dressed as described and hiding behind a bush two blocks from the scene of the crime. This Court held that under these circumstances it was lawful to arrest the defendant without a warrant.

In State v. Grier, 268 N.C. 296, 150 S.E.2d 443, police officers knew that a robbery had been committed, and they had information that the robber wore checkered pants and had a cut on the rear of his right leg. When the police apprehended the defendant, dressed in checkered pants, with a cut on the rear of his right leg, they placed him under arrest. Incident to the arrest, the officers searched the defendant and found property on his person similar to that taken in the robbery. This Court held that the police officers had reasonable grounds to arrest the defendant, and that the arrest without a warrant was valid.

In the case of State v. Bell, 270 N.C. 25, 153 S.E.2d 741, police officers stopped an automobile which fitted the description of one used in connection with a robbery, and at that time observed a pistol lying on the seat of the car. The Court held that the officers had reasonable ground to believe that the defendant had committed a felony and would evade arrest if not taken into custody. Accord: State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744; State v. Pearson (State v. Belk) 269 N.C. 725, 153 S.E.2d 494; State v. Egerton, 264 N.C. 328, 141 S.E.2d 515; People v. La Bostrie, 14 Ill.2d 617, 153 N.E.2d 570; People v. Kissane, 347 Ill. 385, 179 N.E. 850; Holmgren, What Are Reasonable Grounds for Arrest, 42 Chi-Kent L.Rev. 101.

Here, the victim of the assault gave police officers a description of her assailant, including information as to the color and type of his shirt and trousers. As a result of the description furnished, the officers went to defendant's residence and found him there dressed as described, with unexplained fresh scratches on his hands and arms and skinned places on the knuckles on his right hand. The police were aware that the person whom they sought had struck his victim with his hands and that the person had been engaged in a struggle with his victim. It had been raining on this night and defendant's pants were wet from the waist down.

There was sufficient competent evidence to support the trial judge's findings of fact, and the findings of fact in turn supported the trial judge's conclusion that the items of clothing were legally obtained while defendant was in custody under lawful arrest.

We have not here discussed defendant's argument as to certain misdemeanor warrants since we hold that the arrest was valid pursuant to G.S. § 15--41(2).

The trial judge correctly admitted the items of clothing into evidence.

Defendant next assigns as error the admission of the testimony of Officer Swain to the effect that he had found hairs inside and outside the Simpson dwelling which matched the hairs found on defendant's clothing. He argues that five days had passed since the crime was committed, and although the house was locked, the premises had not been under constant surveillance since the date of the crime, and therefore someone else could have been on the premises and left the hairs.

Every circumstance that is calculated to throw light upon a supposed crime is admissible if otherwise competent. The weight of the evidence is for the jury. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. Ham, 224 N.C. 128, 29 S.E.2d 449; Strong's N.C.Index 2d, Criminal Law, § 33, p. 531.

The finding of the hairs similar to those found on defendant's clothing on the living room floor and in the moulding of the front porch of the victim's house is a circumstance tending to show that defendant had been on the premises. The lapse of time which might have given someone else opportunity to go on the premises and leave such hairs is a circumstance to be considered by the jury in determining the weight of the testimony.

Defendant contends that he should be granted a new trial because of a statement made by the solicitor for the State during his argument to the jury. The full argument of the solicitor does not appear in the record. The only excerpt from the argument is shown in the record as follows:

'If a jury says guilty, the appeals can go on from now until Doom's Day. Look at Cassius Clay. Appeals can go on forever. That is the reason we have these appeals. * * *

OBJECTION SUSTAINED EXCEPTION NO. 5.'

The principles of law concerning arguments of counsel in contested cases have been recently stated in the case of State v. Williams, 276 N.C. 703, 174 S.E.2d 503, where Moore, J., Speaking for the Court, stated:

'In this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Christopher, supra (258 N.C. 249, 128 S.E.2d 667). However, it is the duty of the judge to interfere when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury, the argument and conduct of counsel being largely in the control and discretion of the presiding judge. State v. Correll, 229 N.C. 640, 50 S.E.2d 717. Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; State v. Tyson, 133 N.C. 692, 45 S.E. 838. Such exceptions, like those to the admission of incompetent evidence, must be made in apt time or else be lost. This general rule has been modified in recent years so that it does not apply to death cases where the argument of counsel is so prejudicial to defendant that in this Court's opinion it is doubted that the prejudicial effect of such argument could have been removed from the jurors' minds by any instruction the trial judge might have given. State v. Miller, 271 N.C. 646, 157 S.E.2d 335; State v. Dockery, 238 N.C. 222, 77...