State v. Norwood

• Citation: 289 N.C. 424,222 S.E.2d 253
• Decision Date: 02 March 1976
• Docket Number: No. 79,79
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Richard M. NORWOOD, Jr.

Page 253

222 S.E.2d 253

289 N.C. 424

STATE of North Carolina v. Richard M. NORWOOD, Jr.

No. 79.

Supreme Court of North Carolina.

March 2, 1976.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

Winston, Coleman & Bernholz by Barry T. Winston and J. William Blue, Jr., Chapel Hill, for defendant-appellant.

SHARP, Chief Justice.

Defendant's first two assignments of error challenge the sufficiency of the kidnapping and burglary indictments, set out in pertinent part in the preliminary statement of facts. At the trial defendant made no motion to quash, but he now argues that both indictments are defective and violative of N.C.Const. art. I, §§ 22 and 23 because neither sets forth the essential elements of the crime of kidnapping. His argument is that the indictments should have charged that Susan Brogden was forcibly carried away against her will. This argument is without merit; past decisions have rejected it.

Since the conduct charged occurred prior to 1 July 1975, the indictment upon which defendant was tried for kidnapping was drawn under G.S. 14--39 (1969), which made kidnapping a felony, providing in pertinent part: 'It shall be unlawful for any person . . . to kidnap . . . any human being . . ..' (We here note that, effective 1 July 1975 G.S. 14--39 was rewritten by N.C.Sess.Laws, ch. 843 (1975), codified in N.C.Gen.Stats. vol. 1B, (Supp.1975).)

In State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971), this Court held essentially the same language used in the present indictment sufficient to charge the crime of kidnapping. Justice Huskins, writing for the Court, after noting that the bill of indictment was drawn in the words of G.S. 14--39, which punished kidnapping without defining the word, said: 'This is sufficient. If an indictment charges the offense in a plain, intelligible, and explicit manner and contains averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the same offense, it is sufficient. (Cites omitted.) An indictment for a statutory offense is sufficient as a general rule when it charges the offense in the language of the statute. (Cites omitted.)

'In State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966), a bill of indictment charging that defendant 'unlawfully, wilfully, feloniously and forcibly did kidnap' a named person was held sufficient to withstand a motion to quash, since the word 'kidnap' has a definite legal meaning. It follows, therefore, that defendant's challenge to the sufficiency of the bill of indictment in this case is without merit and is overruled. We think the bill adequately informed defendant of the charge against him and that he understood it.' State v. Penley, supra, 277 N.C. at 707--08, 178 S.E.2d at 492. See also State v. Roberts, 286 N.C. 265, 210 S.E.2d 396 (1974); State v. Lowry, 263 N.C. 536, 539--40, 139 S.E.2d 870, 873 (1965).

Thus, we hold that the indictment in the present case was sufficient to support the conviction for kidnapping.

The essential averments of a burglary indictment are set out in State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975) and State v. Allen,186 N.C. 302, 119 S.E. 504 (1923). The indictment for burglary must specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering, and it is not sufficient to charge generally an intent to commit an unspecified felony. However the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is enough to state the offense generally and to designate it by name. See also 12 C.J.S. Burglary § 32 (1938). Under these rules the burglary indictment here was clearly sufficient.

Defendant's final assignment of error asserts that the trial court committed prejudicial error in admitting into evidence the handcuffs which defendant placed on Miss Brogden's wrists. His contention is that the State failed to prove 'a proper chain of custody and failed to show that the handcuffs were in substantially the same condition as they were when defendant used them.' At the outset we note that defendant did not object to the admission of the handcuffs when offered, and the settled rule is that the failure to make an objection waives it. 1 Stansbury's North Carolina Evidence § 27 (Brandis Rev.1973). However, we also note that the assignment of error has no merit; the handcuffs were properly admitted.

Miss Brogden testified that she would recognize the handcuffs that had been used to shackle her. When she was shown a pair of handcuffs marked as State's Exhibit No. One she said: 'I recognize the handcuffs and believe them to be the same ones...