State v. Pinyatello, 511

• Decision Date: 12 January 1968
• Docket Number: No. 511,511
• Citation: 272 N.C. 312,158 S.E.2d 596
• Parties: STATE, v. Joseph Michael PINYATELLO.
• Court: North Carolina Supreme Court

Page 596

158 S.E.2d 596

272 N.C. 312

STATE, v. Joseph Michael PINYATELLO.

No. 511.

Supreme Court of North Carolina.

Jan. 12, 1968.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell, for the State.

Carl C. Churchill, Jr., Raleigh, for defendant appellant.

PARKER, Chief Justice.

Defendant assigns as error the denial by the court of his motion to quash the indictment made before pleading.

The indictment is based upon G.S. § 14--89.1, which reads:

'Safecracking and safe robbery.--Any person who shall by the use of explosives, drills, or other tools unlawfully force open or attempt to force open or 'pick' the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary.'

Defendant contends in his brief that the indictment is defective because a strict construction of G.S. § 14--89.1 requires that the safe or vault broken into would be required to have a combination and that the indictment should at least read: 'that the defendant did unlawfully, willfully, and feloniously, by the use of an axe and two crowbars and other tools, force open and attempt to force open the combination of a safe and vault, the property of. * * *'

It is true that penal statutes are construed strictly against the State and liberally in favor of the private citizen with all conflicts and inconsistencies resolved in his favor. State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97. Construing G.S. § 14--89.1 it is manifest that the statute condemns (1) the felonious opening or attempting to force open a safe or vault used for storing money or other valuables by explosives, drills, or other tools, or (2) to pick feloniously the combination of a safe or vault used for storing money or other valuables. The felonious picking of a combination of a safe or vault is a safe robbery condemned by our statute. The word 'pick' has a distinct meaning well understood by policemen, laymen, and courts alike. To adopt the reasoning of defendant would mean there can be no safecracking or safe robbery unless the safe or vault has a combination, which would lead to a strained construction of the statute and a ridiculous result, and it would mean that safes or vaults without combinations could not be the subject of safecracking or safe robbery under G.S. § 14--89.1. We have repeatedly held that all that is required in an indictment, since the adoption of G.S. § 15--153, is that it be sufficient in form to express the charge against the defendant in a plain, intelligible, and explicit manner, and to contain sufficient matter to enable the court to proceed to judgment and thus bar another prosecution for the same offense. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857; 2 Strong's N.C.Index, Indictment and Warrant, § 9. The indictment here accurately and clearly alleges all the constituent elements of the crime of safecracking condemned by G.S. § 14--89.1 almost verbatim in the language of the statute. The court properly denied the motion to quash the indictment.

The State offered evidence; defendant offered none. Defendant assigns as error the denial of his motion for a judgment of compulsory nonsuit made at the close of the State's evidence.

The State's evidence tends to show the following facts: On 21 November 1966 William McLaurin, d.b.a. McLaurin Parking Company, owned and operated eight parking lots in Raleigh, one of which is situated at 310 S. Salisbury Street. The building on South Salisbury Street contains the central office of McLaurin Parking Company. In the back office of the South Salisbury Street premises there was a safe used for storing money. About 3 p.m. on Sunday, 20 November 1966, McLaurin went to this place of business and was there alone checking on Friday's and Saturday's receipts until about 5 p.m. The parking lot was not open for business at that time. Before leaving he placed in this safe various checks, an undetermined amount due employees for a day or two of work, about $200 due employees for the prior week's work, and $1,303 in parking receipts. He then locked the safe as was customary. There was one door opening into the inner office where the safe was, and it was locked when he left at 5 p.m. that afternoon. The money he locked up in his safe consisted of ones, fives, tens, twenties, and coins. He does not recall any bills larger than a twenty.

At approximately 7:30 a.m. the following morning an employee who opened the place of business telephoned McLaurin, and he arrived there shortly thereafter. The door to the office in the building where the safe was situated had been pried open. The door of the safe had been torn off and was lying about two feet from the safe itself. Both the interior and exterior of the safe were totally demolished. There was nothing in the safe and his money was gone. Drawers in the safe had been taken out and searched, and the papers therein thrown about the office. He was shown an envelope marked for identification as State's Exhibit No. 1. This envelope was white and clean when he locked it in his safe the Sunday afternoon before. It had contained $50 belonging to the wife of a former employee, Cliff Peele. The door to the office in which the safe was kept was pried open with the 'figure' of a crowbar stuck in it. He had a safe in the ticket office. This safe was not torn up nor did it show any signs of damage. On this particular occasion there was not anything of value in that safe.

About 1 a.m. on the morning of 23 Movember 1966 at the corner of Holden and Watauga Streets in the city of Raleigh, Calvin Heath, a member of the Raleigh police department, arrested defendant for public intoxication and carried him to the county jail. He asked defendant to remove his shoes, which he did. A cardboard tag was marked and attached to the shoes which were then turned over to the county jailer. Defendant's shoes were introduced in evidence and marked State's Exhibit No. 2.

J. H. Ross is a Raleigh police officer and has been a member of the City-County Bureau of Identification since September 1966. He went to the McLaurin Parking Company building located on South Salisbury Street about 7:30 a.m. on 21 November 1966. He was the first officer to arrive at the scene. He found the safe in the inner office torn open, papers scattered on the floor, and a general disarray. He proceeded to check the safe and the papers for evidence. He dusted papers with fingerprint powder, and a heel print appeared on an envelope among the papers on the floor. This envelope was on the floor about two feet from the safe when he picked it up. It had on the front of the envelope 'McLaurin Parking Company.' On the back of the envelope was the heel print. The heel print was on the side opposite the one on which 'McLaurin Parking Company' was written. He took that envelope and secured it. It was marked State's Exhibit No. 1. It is in substantially the same condition now as when he took it in his possession. When he put the fingerprint powder on the envelope, it made the print and at the same time soiled the paper. He saw on this envelope a heel print with a cat's face. He did not know how long the heel print had been on the envelope. He secured no fingerprints. He took in his possession at the scene of the robbery an axe and a crowbar.

M. L. Stephenson, a detective with the Raleigh police department, was assigned to investigate the safe robbery at McLaurin Parking Company. He got State's Exhibit No. 1 (the envelope) from Ross and State's Exhibit No. 2 (defendant's shoes) from the jailer. He carried them to Steve Jones of the State Bureau of Investigation. He knows Clifford Peele and his brother. He saw defendant and Lewis Morgan going into and coming out of a house at 701 East Franklin Street on numerous occasions. He does not know which one of them owned the house or rented it. He personally observed that house for about three weeks on several different occasions all night long. He observed Clifford Peele and his brother and defendant going and coming from that address. He did not sign any warrants for the two Peele brothers. To his knowledge they have never been charged with this offense or any complicity in it. He has never talked to the Peele brothers. He has seen the defendant with either one or both of them several times during November. The two Peele brothers had worked for McLaurin.

Steve Jones testified in substance: He is in charge of the identification of the photography section of the State Bureau of Investigation in Raleigh. He has been with that Bureau for four years and five months. He received State's Exhibits Nos. 1 and 2 on 23 November 1966 from Detective Sergeant M. L. Stephenson, and they have been in his possession since their receipt. He has had three months intensive training with the Federal Bureau of Investigation at Washington, D.C., in the field of identification. He worked for the Federal Bureau of Investigation in Washington for two years and six months, and he has been engaged actively in identification work with the State Bureau of Investigation in Raleigh in fingerprints, palm prints, shoe tracks, etc., for the past four years and five months. Since he has been with the State Bureau of Investigation, he has had occasion to make comparisons of latent shoe prints with the actual shoes themselves. For the past six months, starting in October 1966 through March 1967, he has had for examination an average of 1,869 prints per month. On 23 November 1966 he made a visual comparison of State's Exhibit No. 1 with the heel of the shoe, State's Exhibit No. 2, by using a 'five power magnifier to pick out certain characteristics of wear on the shoe and on the impression left on the paper and by using a divider to measure my distances and pointer to keep with the exact location in which I was working with.' The court held that Steve...