State v. Pitts

• Decision Date: 03 February 1971
• Docket Number: No. 7121SC76,7121SC76
• Citation: 10 N.C.App. 355,178 S.E.2d 632
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Marquis DeLafayette PITTS.

Page 632

178 S.E.2d 632

10 N.C.App. 355

STATE of North Carolina v. Marquis DeLafayette PITTS.

No. 7121SC76.

Court of Appeals of North Carolina.

Feb. 3, 1971.

Certiorari Denied by Supreme Court April 6, 1971.

Atty. Gen. Robert B. Morgan, Trial Atty., H. A. Cole, Jr., and Staff Atty. Walter E. Ricks, III, Raleigh, for the State.

Curtiss Todd, Winston-Salem, for defendant appellant.

MALLARD, Chief Judge.

The evidence for the State tended to show that the driveway to the loading area of the store and warehouse of the Keith-Lowery Furniture Company, a corporation, at Eighth and Liberty Streets in Winston-Salem was fenced in on 9 June 1970. There was a gate at the entrance of this driveway.

A police officer testified that in response to a call, he went to the area about 4:00 a.m., parked his car with the lights shining into the driveway, and saw a person 'poke his head out of the door and look towards me and then his head go back in.' The officer thereupon used his radio to call for help. Two other officers arrived. They found the chain and the hasp which secured the gate to the driveway had been broken, and a truck was parked at the loading platform.

A demand was made by the officers for whomever was in the building to come out, whereupon defendant Pitts and a man by the name of James Crosby came out. There was nobody else in there. The defendant Pitts was searched there at the scene, and in his pocket the officer found one of the padlocks which had been used the night before on the chain to secure the gate to the driveway.

Entry into the main warehouse and store had been made through a window from the shipping room. This glass window had been covered with iron bars which had been pulled and bent in order to gain entry, and the window glass was broken. The shipping room was not a part of the main warehouse and store, and it was separated from the loading platform by sliding doors. The door to the shipping room from the main warehouse and store had a bar across it on the inside of the warehouse and store which had been removed and the door opened. The officers found in the shipping room five portable television sets, a stereo tape recorder, and an AM and FM radio combination sitting on top of one of the television sets, all of which had been removed from the main store or warehouse. When the business was closed the night before, these television sets, radio, and tape recorder were not in the shipping room.

The building was locked and secured the night before, the door from the main building to the shipping room was closed with a bar across it on the inside, the bars across the window were not bent, and the window was not broken. An ADT burglar alarm system was activated by L. J. Keith, Secretary-Treasurer of the Keith-Lowery Furniture Company, when he closed and locked the building on the evening of 8 June 1970 at about 6:00 p.m. In the early morning hours of 9 June 1970, 'the ADT people' notified Mr. Keith that the store had been entered and shortly thereafter he went to the store.

Defendant testified that on 8 June 1970, he, 'Frankie, the co-defendant,' and others went to South Carolina and returned about 12:30 or 1:00 a.m. (It appears that the defendant refers to James Crosby, the other person apprehended by the officers in the building, as 'Frankie.') He and Frankie had been drinking and decided to go over on the east side to a 'drink house' although 'we stay on the west side of town.' They went to a bus station and Frankie left first. Defendant stayed at the bus station for about twenty-five or thirty minutes after Frankie left and then went to Liberty Street. He went 'straight up Liberty.' Defendant said:

'I was whistling, you know, and singing to myself. When I got up by Keith and Lowery I was whistling and singing, and when I started by, was just about past Keith-Lowery, somebody said, 'pst. Hey Dee.' I looked back and didn't see anybody. When I started to turn, I heard it again. So when I stepped back I saw Frankie. He was standing back there on what they say was the loading dock of Keith-Lowery. And he motioned for me to come here. So I went on over to the gate, opened the gate, and when I started in my foot hit something--you know, I kicked it when I was walking--and I picked it up. It was a lock. It was the same lock in question here. I picked the lock up. I walked on back there to see what he wanted. When I walked back there he was standing back there, and it was some televisions and stuff sitting out there on that loading dock. I said, 'Man, what are you doing back here?' you know. When I went back there they were sitting back there, and I told him to come on out, told him to come on out because the place was burglarized. And just as we turned to walk out--I guess he was going to go with me; I was going to go about my business--as we turned to walk out. I guess that is when Sergeant Kelly pulled up because we could see the lights, you know, appear. And Frankie peeped out from around there and said it was the police. And I got kind of mad then. I told him, I said, 'Now, here I am standing back here; I don't know what is going along, and I am going to jail with you.' And I sat down. I went on out, and it never dawned on me that I had the lock in my pocket until the officers searched me and pulled the lock out.'

The defendant testified that he had nothing whatever to do with breaking into the place, that he did not steal anything, and that he did not go there with the intent to steal anything.

On cross-examination as to his criminal record, the defendant testified that he went to training school for storebreaking, had been convicted of 'temporary larceny of an automobile,' had been convicted of escape, and had been convicted in Federal court of the interstate transportation of a stolen motor vehicle.

Defendant assigns as error the failure of the trial judge to allow his motion for judgment of nonsuit. The State's contention that the defendant's motion for nonsuit should not be considered because it was not renewed as required by G.S. § 15--173 at the conclusion of all the evidence is overruled. G.S. § 15--173.1, enacted in 1967, provides that '(t)he sufficiency of the evidence of the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. 15--173 in the trial court.' See also State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969), and State v. Davis, 273 N.C. 349, 160 S.E.2d 75 (1968). However, we hold that in the case before us there was ample evidence of the defendant's guilt to require its submission to the jury. In finding him guilty, it appears that the jury did not believe the defendant's version of how he happened to be at the place where this crime was committed at the time of its commission.

After the defendant entered a plea of not guilty, he then filed what is denominated a 'pretrial motion' which bears no signature and in which he moves to dismiss the charges against him on the following grounds:

'(1.)

Held thirteen (13) days without a probable cause hearing:

(2.)

Denied the right to present evidence in his behalf:

(3.)

Held under excessive bond for duration of incarceration in Forsyth County Jail under aforesaid charge:

(1A.)

GEMERA v. STATE (See Mallory Supra) * * * (sic) which states:

'That a person accused of a crime must be taken before a magistrate for the findings of probable cause within seventy-two (72) hours.'

(1B.)

By holding the Defendant thirteen (13) days, the Court denied them 'due process of law' and 'equal protection of the law.' 'This also is a constitutional rights violation.'

(2A.)

Defendants constitutional...