State v. Duncan, 11

• Decision Date: 05 October 1976
• Docket Number: No. 11,11
• Citation: 228 S.E.2d 237,290 N.C. 741
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Earl DUNCAN.

Page 237

228 S.E.2d 237

290 N.C. 741

STATE of North Carolina v. Charles Earl DUNCAN.

No. 11.

Supreme Court of North Carolina.

Oct. 5, 1976.

Rufus L. Edmisten, Atty. Gen. by John M. Silverstein, Sp. Deputy Atty. Gen., Raleigh, for the State.

Robert F. Rush, Charlotte, for defendant.

LAKE, Justice.

The appellant's principal contention on this appeal is that the trial court erred in allowing the State's witnesses, Watkins and Devine, to testify, over objection, concerning their associations with the appellant in other criminal activities, specifically their collaboration with him in a series of unspecified breakings, enterings and stealings extending throughout North Carolina, South Carolina, Virginia, Georgia and Florida over a period of two years prior to the breaking and entering of the Sherwin home. There is no merit in this assignment of error.

The general rule is that in a prosecution for a particular crime the State, prior to the defendant's taking the witness stand and thus placing his general character and credibility in issue, cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, as there noted, numerous exceptions to this rule are also well established. One is that such evidence may be admissible to identify the defendant as a perpetrator of the crime with which he is presently charged. Another is that such evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.

The evidence here in question was to the effect that the appellant, the two witnesses and others were members of a group, which, over a period of time, had made it their business to burglarize houses previously identified by leaders of the group as likely to yield substantial loot to thieves. In State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975), as here, the defendant's defense was alibi. We held that evidence of prior similar offenses committed in conjunction with the witness was competent as tending to establish a common plan or scheme and also was competent on the question of identity.

In State v. Stancill, 178 N.C. 683, 100 S.E. 241 (1919), the defendant was indicted for larceny of tobacco from the barn of one Little. A witness for the State was permitted to testify that the defendant had participated in a theft of tobacco from the barn of one Wilkinson. The Court, speaking through Justice Walker, said:

'The testimony as to the theft of the Wilkinson tobacco was offered merely to show the intent with which the defendants stole this tobacco, and not to prove the accusation substantively. It was sufficiently connected with the main charge to render it competent for this purpose. It was all taken to Raymond Stancill's, the common storehouse for the loot of these defendants. It was but a part of a series of transactions carried out in pursuance of the original design, and it was contemplated by them in the beginning, that they should plunder the tobacco barns in the neighborhood, and this was one of them. The jury might well have inferred this common purpose from the evidence. Robbing Wilkinson was part of the common design, and done in furtherance of it. Proof of the commission of other like offenses to show the Scienter, intent, or motive is generally competent when the crimes are so connected or associated that this evidence will throw light upon that question.'

In State v. Simons, 178 N.C. 679, 100 S.E. 239 (1919), the Court, speaking through Chief Justice Clark, said:

'There are offenses which are committed in sudden temper, or under violent provocation, or by the impulse of passion. As to these, the only competent evidence is what took place at the time. S. v. Norton, 82 N.C. (628) 630. But the crime of illicit dealing in intoxicating liquor is in the same class with larceny, counterfeiting, forgery, obtaining money under false pretenses, and burglary, which are all committed with deliberation, in defiance of law, and for the ignoble...