State v. Vick
| Decision Date | 23 March 1938 |
| Docket Number | 73. |
| Citation | 195 S.E. 779,213 N.C. 235 |
| Parties | STATE v. VICK. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; Clawson L. Williams, Judge.
Alvin Vick was convicted of possessing implements of housebreaking without lawful excuse, and he appeals.
No error.
The courts should take judicial notice of whatever is, or ought to be, generally known within the limits of their jurisdiction, since justice does not require that courts profess to be more ignorant than the rest of mankind.
This is a criminal action in which it is charged that the defendant did unlawfully, willfully, and feloniously, without lawful excuse, have in his possession certain picklocks, keys, bits hammers, crowbars, nitroglycerin, dynamite caps, fuses drills, soap, shotguns, rifles, axes, and other implements for housebreaking, contrary to the form of the statute.
About 4 o'clock a. m. on a morning in May, 1935, officers of Nash county were searching for one Alfred Denton, an escaped convict. They went to the home of one Bottoms at Gold Valley and waited. They saw an automobile approach Bottoms' home and drove out to meet it with their lights off. When the officers got within 150 or 200 yards of the approaching automobile, they turned their lights on. Denton was driving the approaching car and attempted to turn around. In doing so he cut the wheels in a ditch and the car was unable to move. The officers recognized this defendant in the car with Denton. As the officers approached the car Denton opened fire with a pistol. The defendant picked up a rifle and shot at them from the rear seat. He then picked up a shotgun and shot at them twice. The officers returned the fire. Whereupon Denton and Vick got out of their car and escaped, using their car as a shield.
Upon searching the car abandoned by Denton and Vick the officers found an ink bottle full of nitroglycerin, soap, eye-dropper nine dynamite caps, dynamite fuse, pistol cartridges, a double-barrel shotgun, a single-barrel shotgun and a sawed-off shotgun, a pair of bolt clippers, a sledge hammer cold chisel, and pistol cartridges.
Denton was apprehended within a few days and returned to the State's Prison. The officers did not know this defendant and did not see him again until July, 1937, when they recognized him in the courthouse in Nashville. The defendant was thereupon arrested, indicted and put upon trial. The defendant set up the defense of an alibi and testified that he left Nash county in January, 1935, and did not return to the county until February, 1936; that at the time the officers related they saw Denton, he, the defendant, was registered at the Y. M. C. A. in Fayetteville under an assumed name.
There was a verdict of guilty, and from judgment pronounced thereon the defendant appealed.
A. O. Dickens and Connor & Connor, all of Wilson, for appellant.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
There are no exceptions to the evidence. The defendant relies primarily upon an alleged error in the charge of the court below and the failure of the trial judge to properly define the offense charged and the elements thereof.
While the statute under which the defendant stands indicted creates three separate offenses, this defendant was indicted for the violation of only one, to wit: The possession of implements of housebreaking without lawful excuse. In the court below the defendant made no contention that the tools found in the possession of Denton and the other occupant of the car were not implements of housebreaking. His defense was bottomed entirely upon an alibi. He chose this theory upon which to test his guilt or innocence before the jury. It is doubtful whether he can now challenge the sufficiency of the evidence to establish the offense charged, or contest the sufficiency of the charge of the court in that respect. Speaking to the subject in State v. Church, 192 N.C. 658, 135 S.E. 769, 770, Adams, J., says:
"The defendant excepted to the charge on the ground that the judge failed to state in a plain and correct manner the evidence in the case and to declare and explain the law arising thereon. C.S. § 564. It is insisted that no definition of larceny or of the burglarious breaking was given the jury, and that the essential elements of the crimes were not explained. We have had occasion to say that a statement of the contentions of the parties, together with a simple enunciation of a legal principle, is not a sufficient compliance with the statute. Watson v. Tanning Company, 190 N.C. 840, 130 S.E. 833. If the charge, otherwise clear, is subject to this criticism the inadvertence was no doubt due to the fact that the defense was an alibi and the alleged impossibility of the defendant's guilt.
The principal question had reference to the defendant's participation in the crimes rather than to their essential elements; but, as to the counts on which the defendant was convicted, the constituted elements were at least inferentially given in the beginning of the charge." State v. White, 171 N.C. 785, 87 S.E. 984.
The portion of the charge to which the defendant takes exception is as follows: ...
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