State v. Knight

• Decision Date: 17 January 1964
• Docket Number: No. 651,651
• Citation: 261 N.C. 17,134 S.E.2d 101
• Parties: STATE, v. Gene KNIGHT and Joe Watkins.
• Court: North Carolina Supreme Court

Page 101

134 S.E.2d 101

261 N.C. 17

STATE, v. Gene KNIGHT and Joe Watkins.

No. 651

Supreme Court of North Carolina.

Jan. 17, 1964

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Robert S. Cahoon and J. Owen Lindley, Greensboro, for defendant appellants.

PARKER, Justice.

Defendants assign as error the denial of their motion to quash the indictment, made in apt time before pleading to the indictment. They contend the indictment should be quashed for the following reasons: One, it is improper to charge them jointly in one indictment; two, the three counts of a non-burglariously breaking and entry, of larceny and of receiving are conflicting and broadside and improperly joined; and three, that the first count charges them with a non-burglariously breaking and entry into 'a certain storehouse, shop, warehouse, dwelling house and building occupied by one Dr. C. W. McAnally,' etc., which does not give them any specific information as to the type of structure they are charged with breaking into. This assignment of error is without merit.

'When an offense is one which may be committed by more than one person at the same time, the several persons engaged in its commission may be jointly charged.' 42 C.J.S. Indictments and Informations § 159 a, p. 1106.

In State v. Mincher, 178 N.C. 698, 100 S.E. 339, the Court said: 'It has been the uniform practice in this state to join a count for larceny with one for receiving in one indictment, and this has been repeatedly approved. ' It is also proper to join a count for a non-burglariously breaking and entry with one for larceny at the same time and with one for receiving at the same time in one indictment in order to meet the evidence which may possibly be adduced at the trial, and this has been the uniform practice in this State. The three counts in the indictment correctly charge in the usual form all the essential elements of the three offenses charged.

The first count charging a nonburglariously breaking and entry charges the breaking and entry into certain buildings specified in G.S. § 14-54, which creates the offense. The first count in the indictment charges all the essential ingredients of the offense created by G.S. § 14-54, and is good. Where an indictment correctly charges all the essential elements of the offense, but is not as definite as the defendant may desire for his better defense, his remedy is by a motion for a bill of particulars, G.S. § 15-143, and not by a motion to quash. State v. Everhardt, 203 N.C. 610, 166 S.E. 738. When a bill of particulars is furnished, it limits the evidence to the transactions or items therein stated. State v. Williams, 211 N.C. 569, 190 S.E. 898.

The next question for decision is whether the State's evidence survives each defendant's motion for judgment of nonsuit, and suffices to carry the case to the jury against both defendants or any one of them on the first two counts in the indictment or either of them.

The State's evidence, considered in the light most favorable to it, presents these facts:

Dr. C. W. McAnally, a practicing dentist for 40 years, lives in his own home in the town of Madison. About 25 or 30 years before 17 January 1963, he bought a metal safe, which he has had in his house since then. On 17 January 1963 this safe was located in a closet adjoining his bedroom, and he had in it bonds, stocks, insurance papers and $75,000 in U. S. money, all his property. This money consisted of hundred dollar bills, fifty dollar bills, twenty dollar bills, and a lesser number of five dollar bills. Some of that money was Series 1937; a large part of it was Series 1950. From time to time he went through his securities and money in the safe. He got some stock out the morning of 17 January 1963. This money, by reason of being kept for years in his safe, had a moldy, stinky odor.

He is a widower and lives alone. On 17 January 1963 his maid was off. On that day he went home for lunch about 11:40 a. m. He kept the key to his front door in a little wicker basket on the right-hand side when one enters the front door. He ate lunch in his kitchen. He then went into his bedroom and sat down in a chair. His house is surrounded by a fence. Between his fence and the street there is a tree. Looking through his window in his bedroom, he saw standing on the sidewalk behind this tree a man he had never seen before. He watched him about thirty minutes. During this time this man moved once or twice to a little fill adjoining the sidewalk and was watching his house. About 12:55 p. m. he came out of his front door, locked it, put his key in the wicker basket, and started to his office. As he came out of his house, this man, whom he identified at the trial as defendant Gene Knight, looked at him, and he looked at this man. Then Gene Knight walked across the street to another man standing on Tuttle's Chevrolet lot, whom he had seen from the window of his bedroom standing there fifteen or twenty minutes. This man standing on the Chevrolet lot appeared about the same size and age as the defendant Joe Watkins.

He returned home about 5:00 p. m. His front door and the back door were unlocked. The wicker basket and the front door key were lying in the hallway. He went to the closet adjoining his bedroom, and his safe and all its contents were gone.

On 10 or 12 January 1963 John J. McCaskill, who lives in Greensboro, North Carolina, loaned his automobile, a 1956 twodoor, two-tone Mercury sedan, to defendants. Between 9 and 10 p. m. on 18 January 1963 Joe Watkins his first wife Ruby Dunn and her sister Bobbie Dunn, and a man whose name is not stated in the evidence, went to Salisbury, North Carolina, in Watkins' automobile. There Bobbie Dunn got in a 1956 Mercury sedan, drove it back to Greensboro, and parked it where Watkins showed her to park it, which was in front of where John J. McCaskill lives. The next morning McCaskill found his automobile parked in front of his home. It then had a dent in it from the left front door to the back panel. Later Watkins told him he had had an accident with the automobile and gave him three hundred dollars in twenty dollar bills saying that ought to take care of the damage. He spent two hundred dollars of this money and turned one hundred dollars of it over to the State Bureau of Investigation. The State introduced this hundred dollars in evidence. Dr. McAnally examined and smelled the five twenty dollar bills and testified he could identify it

A few days before 17 January 1963 two men in Madison saw around 10 or 11 a. m. a two-tone automobile with a mashed-in side around the left front door parked in the street near Dr. McAnally's home. Two or three men were in it.

On the afternoon of 14 January 1963 the defendants and another man brought, or had pulled, a 1956 two-tone Mercury automobile into an automobile repair shop in the town of Randleman. They stayed there about an hour while James Brown, the foreman, fixed the starter.

Between 5 and 6 p. m. on 18 January 1963 Joe Watkins went to the home of his sister Mrs. Martha Baynes in Greensboro. He gave his sister $320 in money and told her to send money orders with it. He also left a suitcase with her. When Watkins left, his sister opened the suitcase and found in it a pillowcase looped at the top full of money. She immediately shut the suitcase and called her husband and her father. They called police officers in Greensboro and turned over to them the suitcase and its contents. In the pillowcase was $15,570 in paper money; it was straight or folded, had a musty smell and stunk, and a lot of it was Series 1928-1934. The odor from the paper money was so bad Mrs. Baynes sprayed her bedroom with an air-room deodorizer. This $15,570 was introduced in evidence by the State. Dr. McAnally examined it in detail, smelled it, and testified that this money, by reason of its odor, was his and was in his safe on 17 January 1963.

One Mary Ann Daye had her automobile financed by the Scottish Bank in Salisbury, North Carolina. On 18 January 1963 she and Joe Watkins came in the bank together, and she paid off the loan in money and assigned the title to Joe Thomas Watkins. Joe Watkins signed the certificate of title as purchaser in the bank. A certified copy of the certificate of title from the Department of Motor Vehicles was introduced in evidence. G.S. § 20-42. This shows the bank released its lien on 16 January 1963, though the record on page 76 shows the loan was paid off 18 January 1962, which it seems manifest is a typographical error.

About 5:15 a. m. on 19 January 1963 two members of the military police stationed at Fort Bragg stopped an automobile on Highway 87, because it was 'weaving' in the road and ran through a red traffic light. The driver, Joe Watkins, was drunk. In the automobile with him was his former wife Ruby Dunn. They carried him to the Military Police Station. Watkins had on his person $1,198, of which $1,180 was in twenty dollar bills. These bills were straight and had a musty smell, and were mildewed. Watkins had a hearing before C. W. Jackson, U. S. Commissioner, who put him under a bond of $300 to appear in U. S. District Court. Watkins gave the commissioner as bail fifteen twenty dollar bills. The commissioner testified, 'there was a distinct odor of mustiness, an unpleasant odor to the money. ' The commissioner later turned over this $300 in money to an officer of the State Bureau of Investigation. This money was introduced in evidence by the State. Dr. McAnally examined it, smelled it, and testified that this money, by reason of its odor, was in his safe on 17 January 1963.

On the afternoon of 18 January 1963 Joe Watkins went to the home of his first wife Ruby Dunn and left with her a shoe box, supposedly containing clothes for dry cleaning. Later a police officer of Greensboro came to her home, and she turned this box over to him. He opened the shoe box, and it contained $335 in money, most of...