State v. Fikes, 831

• Decision Date: 20 June 1967
• Docket Number: No. 831,831
• Citation: 270 N.C. 780,155 S.E.2d 277
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Willie FIKES.

Page 277

155 S.E.2d 277

270 N.C. 780

STATE of North Carolina v. Willie FIKES.

No. 831.

Supreme Court of North Carolina.

June 20, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. James F. Bullock, for the State.

James R. Farlow, Chapel Hill, for defendant appellant.

PER CURIAM.

When the State had completed its evidence, defendant moved for a judgment of compulsory nonsuit. The court ruled that it would not submit the case to the jury on the charge of burglary in the first degree, but would submit to the jury the charge of a felonious entering into a house otherwise than burglariously with intent to commit larceny, a violation of G.S. § 14--54, which is a less degree of the felony of burglary in the first degree as charged in the indictment. G.S. § 15--170. The court overruled the motion and defendant excepted.

Defendant then offered the testimony of his mother in his own behalf.

Defendant did not renew at the close of all the evidence his motion for judgment of compulsory nonsuit.

The failure of defendant to renew his motion for judgment of compulsory nonsuit at the close of all the evidence constituted a waiver of his right to insist upon his first motion, and is not subject to review in this Court. G.S. § 15--173; State v. Howell, 261 N.C. 657, 135 S.E.2d 625, and cases therein cited.

Although defendant has waived his right to insist upon a review of the State's evidence by this Court to determine whether it is sufficient to carry the case to the jury, we have decided to set it forth.

The State's evidence, considered in the light most favorable to it, tends to show the following facts: Lyman Cotton lives in Chapel Hill, and is a teacher of English at the University of North Carolina. He went to bed in his house about 11 p.m. on 21 April 1966. He was alone in his bedroom. The room had twin beds in it. The only light in his bedroom was between the twin beds. He awakened about midnight, and decided he would go downstairs and drink a glass of milk. He got out of bed on the floor between the twin beds. He saw something that looked like a stuffed duffle bag sticking out from under his bed. He reached down and touched it, it was warm and moist, and he knew it was the back of a man. He saw only the back of the person under his bed, and he could not tell whether this person was white or a Negro. As he stepped out into a very small upstairs hall, a shot rang out and a light in his bedroom went off. Immediately following, two more shots were fired, one of which shattered the hanging light in the hall. He went downstairs as rapidly as possible, went out the back door, around to the front of his house, across the street, and asked them to call the police. The police came quickly. When he went to bed, two of his shoes were at the foot of his dresser in his bedroom. When he first found the shoes, after the shots were fired, one of them had a lead slug in the heel. He gave that shoe, which is marked State's Exhibit No. 1, to Detective Sergeant Pendergraft of the Chapel Hill police force with the slug still in it. He examined the pistol, marked for identification as State's Exhibit No. 2. He could not absolutely identify it as his pistol, but it looked like his pistol, which is a Smith and Wesson. He could not be altogether certain that it is his pistol, because he had not seen it in some weeks. He kept his pistol in the closet of his bedroom. After the shooting that night, the pistol was not there.

Lindbergh Taylor lives in Durham, North Carolina. He has known defendant five years and saw him at Mason's Motel in Chapel Hill, North Carolina, on 21 April 1966. He (Taylor) had gone to Mason's Motel to get his brother-in-law's clothes as he was checking out of the motel. His brother-in-law, Jesse Wright, and a bunch of boys were there at the time. Defendant wanted to ride back to Durham with them. In Durham he told defendant where he could get a room. Defendant said he wanted him to keep a .38 caliber pistol for him. State's Exhibit No. 2 was handed to Taylor, and he answered upon inquiry, 'It was a pistol like this one.' He took the pistol and kept it for a while. Later, defendant wanted to borrow some money from him. He had no money, but agreed to try to pawn the pistol for him. Defendant told him he went to a doctor's house in Chapel Hill, and shot at him with the gun. Jesse Wright and Peggy Mitchell were present when defendant made this statement. Peggy Mitchell has a newborn child and could not come to court. Defendant told Peggy to take the pistol. After defendant told about shooting somebody with it, he told him the best thing to do was to throw it away. The pistol had two bullets in it, and Peggy took the two bullets out and threw them away. Defendant got mad at Peggy for doing this and took the pistol back.

Charles Thompson testified to this effect: He lives in Durham. He has seen defendant play pool two or three times in the poolroom he runs. On a date he does not recall, defendant and two boys came in his poolroom. Defendant gave him a .38 caliber pistol. He later carried the pistol home and put it in his trunk, where it stayed until the officers came for it. He went home, got the pistol out, and gave it to the officers. The pistol was a .38 caliber pistol, and if the State's Exhibit No. 2 is not it, it is just like the pistol defendant gave him. He gave defendant $10 for the pistol. He saw defendant some three or four weeks later in the poolroom one morning, and defendant asked him if he still had the pistol and if he still wanted to keep it. He replied, yes, he wanted to keep it.

Howard Pendergraft testified in substance: He is a detective sergeant on the police force of the town of Chapel Hill. Late on the evening of 21 April 1966 or early the next morning, he went to the home of Layman Cotton. He made an investigation around his dwelling house, and found two bullets. One was recovered from the molding around the hall at the head of the steps outside Mr. Cotton's bedroom. This bullet is State's Exhibit No. 3. The other bullet, which is marked State's Exhibit No. 4, was in the heel of a black loafer shoe Mr. Cotton gave to him. He turned over to John Boyd of the State Bureau of Investigation the two bullets, a .38 caliber Smith and Wesson pistol, and a black loafer shoe which had the slug in its heel. He had got the pistol from Charles Thompson at his poolroom in Durham. The pistol was kept by and under the control of the Chapel Hill police department until it was turned over to the State Bureau of Investigation's laboratory for examination. He talked with defendant, and defendant denied any knowledge of this pistol.

Lindbergh Taylor, recalled as a State's witness, testified in substance: He visited defendant in jail at Chapel Hill. He had a conversation with defendant about the pistol, and defendant told him he had pawned it to a boy called 'Buck Shot' in a poolroom in Haiti. He does not know 'Buck Shot's' real name, but he is the boy who was on the witness stand a while ago by the name of Charles Thompson.

John Boyd is a special agent with the State Bureau of Investigation in charge of the firearms section of the crime laboratory, and has been so employed for nearly fifteen years. He has had training and experience. The court ruled that he was an expert in the field of firearms and ballistics. To this ruling there was no exception. He testified in substance: He examined the pistol, State's Exhibit No. 2, and the bullets marked State's Exhibits Nos. 3 and 4. These exhibits were given to him by Detective Sergeant Pendergraft of the Chapel Hill police department on 25 April 1966. State's Exhibit No. 3 was fired from the pistol, State's Exhibit No. 2. State's Exhibit No. 4 (the bullet from the heel of the shoe of Mr. Cotton) was fired from a weapon of this exact type, kind and description. His opinion that State's Exhibit No. 3 was fired from the pistol, State's Exhibit No. 2, was based on a microscopic comparison under a variable magnification of two to twenty-two diameters. State's Exhibit No. 3 is a lead alloy. He fired the same type and kind...