State v. Miller, 272--B

Decision Date01 November 1967
Docket NumberNo. 272--B,272--B
Citation157 S.E.2d 335,271 N.C. 646
PartiesSTATE, v. William R. MILLER and Houston L. Wilson.
CourtNorth Carolina Supreme Court

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. William W. Melvin, and Staff Atty. T. Buie Costen for the State.

Sanders, Walker & London by James E. Walker and Arnold M. Stone, Charlotte, for defendant-appellant Miller.

Morrow, Cutter & Collier by John H. Cutter, Charlotte, for defendant-appellant Wilson.

PARKER, Chief Justice.

The State began its case against the defendants with evidence offered by Robert E. Beach who testified that his employer, a business engaged in burglary, fire and holdup protection known as the A-D-T Protection Service, installed and maintained a burglar alarm system in the building occupied by 'Friedman's Jewelry Company on Pineville Road. ' He stated that this system worked on an electrical principle so that when a certain foil around the window is broken the A-D-T Protection Service will receive an alarm on tape down at its office. He further testified that at 1:07 a.m. on 5 January 1967 the Friedman's Jewelry alarm system went off and that he conveyed this information, Via a direct telephone line, to a dispatcher in the Charlotte Police Department and thereafter telephoned Jerry Mountain, the manager of 'Friedman's Jewelry,' notifying him of the break-in.

Mr. Mountain testified in substance as follows: He is the manager of 'Friedman's Jewelry Store at the K-Mart Plaza Shopping Center on Pineville Road. ' The merchandise which is offered for sale to the general public is the property of 'Friedman's Jewelry, Incorporated.' After receiving the call informing him of the break-in, he left his home and went to the store where he arrived about 1:25 or 1:30 a.m. and found two patrol cars and an A-D-T man. The entire front diamond window was broken through and glass was lying on the sidewalk. He had put a new display in the window the day before and had taken an inventory; and, by subtracting the portion which remained, he was able to ascertain that 75% Of the diamonds were gone from the showcase. At this point in his testimony, the solicitor requested Mountain to examine individually certain objects contained in a pillowcase. Thereupon he testified that he had seen the objects before; that they were the display boxes he used for diamonds and a display stand all of which are the property of 'Friedman's Jewelry, Incorporated.' The solicitor then produced another object which the witness identified as a display unit manufactured at the jewelry company's home office. He stated that there are only three of them in Charlotte, one at each of the 'Friedman's Jewelers.' He further testified that he did not knew defendants Wilson and Miller; that neither had been employed at the store to his knowledge; and that neither had his permission to take anything out of the store. The solicitor then handed Mountain a paper envelope and asked him to pour its contents out in front of him and examine each item. After having done so, he stated that the articles consisted of a quantity of men's diamonds, ladies' wedding sets, princess rings, cocktail rings, wedding bands, sapphire rings, and matching wedding bands. He identified them as the property of 'Friedman's Jewelry' by the letters H-D inscribed in the band, which is a mark peculiar to the Friedman's Jewelry chain. He stated that he has been in the jewelry business for two years, and, in his opinion, the reasonable market value of the stolen rings is between four and five thousand dollars. During the course of his testimony, the witness stated that each of the items examined and identified by him were in the showcase window of the store at six o'clock, closing time, on 4 January 1967 but that they were not there when he returned to the premises around 1:30 a.m. on 5 January 1967.

On cross-examination Mountain testified in essence that there are three Friedman's stores on Charlotte, each of which is a separate corporation; that the name of this particular corporation the business premises of which were unlawfully broken into and entered is 'Friedman's Lakewood, Incorporated'; that all the merchandise in the store is owned by 'Friedman's Jewelry, Incorporated,' the home office of which is located in Augusta, Georgia; and that he does not know if 'Friedman's Jewelry, Incorporated' owns all the stock in 'Friedman's Lakewood, Incorporated.'

The pertinent portions of the remainder of the State's evidence tended to show the following:

Officers K. E. Smith and L. A. McCoy, members of the Charlotte police department assigned to the patrol division, were each alone operating their respective police cruisers in their separate areas of the city of Charlotte on the morning of 5 January 1967 when they each received the radio communication from the police department's dispatcher that 'Friedman's Jewelers' had been broken into. Shortly thereafter and at approximately 1:15 a.m., officer Smith saw a black 1964 Ford headed north on Park Road. He was headed south on the same road. Immediately upon observing the car he went to the nearest crossover and proceeded after it. He saw three people inside the car. Officer Smith then radioed ahead to officer McCoy, who was some distance to the north of him in the Park Road area, telling him that a black Ford was proceeding into town on Park Road, that he should be on the lookout for it, and that it should be approaching Senaca about this time. Smith was then two or three blocks behind the suspect car trying to catch up. Officer McCoy first observed the car as it was headed north coming through the intersection of Senaca and Park Road approaching him at which time he was at the intersection of Mockingbird Lane and Park Road. He waited there for the car to pass him and as it did he pulled out behind it thus coming between the black Ford and officer Smith's patrol car. McCoy never let the Ford get more than 100 or 200 feet away from him. McCoy testified that he was familiar with the building that faces Park Road known as the Hamilton House, and when he first saw the Ford it was already north of the Hamilton House. After McCoy had traveled approximately half a block someone on the right-hand side of the car threw a pillowcase out of the right-hand side of the car. It struck the pavement and the grass on the easterly side of the road and sprayed the contents all over the ground. After he saw the pillowcase thrown from the car, McCoy radioed back to Smith, who was still in pursuit also, and advised him of the location at which it had been ejected and asked him to mark the spot. Thereupon, McCoy turned on his red light and the Ford turned a corner and stopped between 1:15 and 1:20 a.m. The driver of the automobile was Jerry Stutts. Defendant Miller was seated in the center of the front seat, and defendant Wilson was seated on the right-hand side of the front seat.

Meanwhile, officer Smith arrived in his patrol car. Thereupon, officer McCoy went back to the area where the objects had been discharged from the vehicle, and he found the white pillowcase, the jewelry cases, and the assortment of rings which had spilled out of the pillowcase and which were scattered all about on the ground. All of these items were offered into evidence and the jewelry boxes, rings, etc., were identified by witness Mountain as having been in the jewelry store showcase window on the afternoon prior to the break-in. These objects were out of McCoy's sight for maybe three or four minutes from the time they were thrown out of the car.

There are two available routes over which an automobile can be driven from the jewelry store to the Hamilton House on Park Road. During the course of his investigation of this case, officer McCoy drove his police car over both these routes; and, in his opinion, the distance between these two points by either course is somewhere between three and four miles and, hence, roughly the same.

McCoy testified on cross-examination that when the Ford passed him it was headed toward town and traveling about forty-five to fifty miles per hour.

In his testimony, officer Smith stated that he 'arrested Mr. Stutts for driving under the influence.' He said that he observed him walk and that in his opinion Stutts was under the influence of an alcoholic beverage or a narcotic drug on that occasion. Officer Smith told about finding the small 'plastic object' or 'stand' lying against Miller's leg on the seat between Miller and Stutts. This object was introduced into evidence. Smith then testified that he observed a 'long, oblong sort of roundish stain on the front of' defendant Wilson's sweater. He stated that the color of the stain was red.

After the State had rested its case, defendant Wilson offered the evidence of Jerry Stutts, Jo Nell Guest, and Helen Godfrey.

On direct examination Stutts testified in substance as follows: Early on the morning of 5 January 1967 he drove out to Friedman's Jewelry and parked his car behind it. He took a tire tool from the trunk of his car, walked around to the front of the building, broke the showcase window out, and grabbed all the jewelry he could reach without crawling through the window. He put this jewelry in a pillowcase which he placed on the back seat of his car and then drove away. He broke into and entered the jewelry store alone and has been tried and convicted for it. After stealing the diamonds he went to Park Road to the Hamilton House apartments. Earlier in the evening he had talked with Jo Nell Guest over the telephone at which time he had told her to have defendant Miller meet him at the Hamilton House apartments as soon as possible. He made the telephone call from a pool room at about 12:30 a.m. He then left the pool room and drove to Friedman's Jewelry where he committed the acts specified above. Stutts identified the various items offered into evidence by the State as having been the articles which he removed from the jewelry store's...

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