State v. Battle
148 S.E.2d 599
N.C.
1966
Check Treatment
Higgins, J.

The appellants argue they are entitled to a reversal of the judgments against them on either of two grounds: (1) Their plea of former jeopardy should have been sustained; (2) their motions for directed verdicts of not guilty, made at the close of all the evidence, should have been allowed. They contend, further, that if the Court should hold they are not entitled to have the judgments reversed and the cause dismissed, they are entitled to a new trial (1) for failure of the court to grant- their motions for a severance, and (2) for the alleged error in permitting the unresponsive answers of Officer Lovett (as to Battle’s admissions) to remain in the case.

At the January Session, 1966, the defendants were arraigned, entered pleas of not guilty, a jury was impaneled, and the State began the introduction of testimony. Due to the sudden illness of the attorney representing the defendant Wallace, the court, over objection of the appellants, ordered a mistrial and continued the case against all defendants. Decision on the plea of former jeopardy depends upon the validity of the mistrial order. Unless that order can be upheld, jeopardy attached, and the plea would be good. If the order is valid, the plea is not good.

The power of the presiding judge to order a mistrial in a criminal case after the jury has been impaneled, and before verdict, has been the subject of review by this Court beginning with State v. Garrigues, 2 N.C. 241. The many subsequent decisions dealing with the court’s power to discharge a jury and order a new trial have been analyzed by Parker, J., (now C.J.) in State v. Cofield, 247 N.C. 185, 100 S.E. 2d 355; by Bobbitt, J. in State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243; by Stacy, C.J., in State v. Harris, 223 N.C. 697, 28 S.E. 2d 232, and in State v. Beal, 199 N.C. 278, 154 S.E. 604. “ 'It is *518 only in cases of necessity in attaining the ends of justice that a mistrial may be ordered in a capital case without the consent of the accused.’ ” State v. Boykin, 255 N.C. 432, 121 S.E. 2d 863.

For obvious reasons the rule against a mistrial finds its maximum rigidity in capital cases. A more flexible rule applies in cases of less gravity. “The ordering of a mistrial in a case less than capital is a matter in the discretion of the judge, and the judge need not find facts constituting the reason for such order.” (citing many cases) State v. Humbles, 241 N.C. 47, 84 S.E. 2d 264. “We conclude that the trial judge in cases less than capital may, in the exercise of sound discretion, order a mistrial before verdict, without the consent of the defendant, for physical necessity such as the incapacitating illness of judge, juror or material witness, and for 'necessity of doing justice’ . . . His order is not reviewable except for gross abuse of discretion, and the burden is upon defendant to show such abuse.” State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838. The incapacitating illness of the only counsel for one defendant, which developed after the trial began, is within the rule. The order withdrawing a juror, declaring a mistrial, and continuing the case to the next session of the court was valid. Hence the plea of former jeopardy was properly denied.

The evidence offered by the State was ample to go to the jury as to all defendants on the first and second counts in the bill. Battle was caught inside the building, hiding under a truck. He lived in Raleigh. Wallace, Bell and Mariam, and another who remained in the automobile and was not identified, appeared at the U-Haul shop in Raleigh where the three rented a U-Haul truck, stating they wanted to move furniture from Raleigh to Durham. A few hours later the same night an officer on highway patrol saw a 1959 Buick with a Georgia license accompanied by a U-Haul truck driving toward Lumberton. Within an hour the burglar alarm alerted the police that a break-in was occurring at the McLean Building. Cruising officers in police vehicles, in radio contact with headquarters and with each other, surrounded the building within minutes after the alarm. Bell and Mariam, pretending to be asleep, though Mariam had a lighted cigarette, were in a 1959 Buick with Georgia license parked 60 to 70 feet from the rear of the building at approximately two o’clock in the morning. Wallace, perhaps on watch at the rear, evidently alerted by the police cars, made for the Buick and his companions. He was arrested between the McLean building and the parked vehicle. He was wearing an “Esso” uniform with these markings: “F. Walker. X-489-5.” Another uniform with identical markings was in the Buick occupied by Bell and Mariam.

*519 The foregoing is the main thrust of the State’s evidence. Though circumstantial as to all defendants except Battle, it is sufficient to sustain the conviction of all defendants. State v. Bridgers, 267 N.C. 121, 147 S.E. 2d 555; State v. Roux, 266 N.C. 555, 146 S.E. 2d 654; State v. Moore, 262 N.C. 431, 137 S.E. 2d 812; State v. Thompson, 256 N.C. 593, 124 S.E. 2d 728; State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431. The motions for directed verdicts were properly denied.

Did the trial court commit error in denying each of the defendants a separate trial? Ordinarily, where defendants are charged' with a conspiracy — an agreement whereby they became partners in crime — they should be tried together unless some sound reason is made to appear which would require a severance. If, for example, the State must rely exclusively on admissions separately made, though involving others as well as the maker, an instruction limiting the testimony to the maker is not too satisfactory. See State v. Bonner, 222 N.C. 344, 23 S.E. 2d 45. In Bonner, the defendants were separately indicted but tried together and their separate confessions were so tied together that each defendant was prejudiced by his co-defendants’ admissions. The Court has established the rule, however, that the motion for severance is left to the sound discretion of the presiding judge. “The granting or refusing of the motion for a separate trial . . . rested in the sound discretion of the trial judge.” State v. Hines, 266 N.C. 1, 145 S.E. 2d 363; State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Donnell, 202 N.C. 782, 164 S.E. 352; See Strong’s N. C. Index, Supplement to Yol. I, Criminal Law, § 87. In this case the court did not commit error in denying the motions for a separate trial.

By Assignment of Error No. 13 the appellants raise a question not altogether free from difficulty. The weakest link in the State’s evidence is the connection between Battle who was found in the building, and the other defendants who were outside. Only through Battle is the State able to connect the others with the actual breaking and entering. Another man, not identified, remained in the car in Raleigh when Bell, Mariam and Wallace rented the U-Haul truck. In consequence of what Battle had disclosed to the officers after his arrest, they were able to recover the U-Haul truck in Lum-berton. After the State had rested, Battle elected to testify in his own behalf. After he had testified, Officer Lovette was recalled and asked these questions “Did Battle ever describe the truck to you?” Answer: “He identified one.” Question: “Did you show him one?” Answer: “Yes, sir. U-Haul truck at the police station which he said was the truck they rented in Raleigh and left in Lumberton.” After the questions were asked and the answers were in, the attorney for *520 the appellants objected. The court replied: “The objection came too late, Mr. Campbell. Overruled.”

It appears obvious the answer was not responsive to the question. The officer volunteered the underscored portion of the answer before any objection was made. The defendant’s counsel should have moved to strike as unresponsive; or, in any event, to have the answer admitted and considered against Battle alone. The unlimited answer strengthened the State’s case at its weakest link and tended to tie in Battle with the others. Did failure to request the court to strike the answer or to limit its application to Battle alone waive the objection?

“In case of a specific question, objection should be made as soon as the question is asked and before the witness has time to answer. Sometimes, however, inadmissibility is not indicated by the question, but becomes apparent by some feature of the answer. In such cases the objection should be made as soon as the inadmissibility becomes known, and should be in the form of a motion to strike out the answer or the objectionable part of it.” Stansbury, Evidence, § 27, p. 51, citing Gibson v. Whitton, 239 N.C. 11, 79 S.E. 2d 196. McIntosh, 2d Ed., N. C. Practice and Procedure, § 1533, states the rule: “Where a party has failed to object to evidence at the proper time, he may still ask the court to strike it out.” (citing Johnson v. Allen, 100 N.C. 131, 5 S.E. 666) “The defendants, however, did not move to strike the nonresponsive parts of the doctor’s answers. Hence the objection was waived.” Gatlin v. Parsons, 257 N.C. 469, 126 S.E. 2d 51; Edgerton v. Johnson, 217 N.C. 314, 7 S.E. 2d 535; Bryant v. Construction Co., 197 N.C. 639, 150 S.E. 122. “The part of the answer ... is not . . . responsive to the question. Objection, therefore should have been made to the answer rather than to the question, and a motion submitted to strike it out. This is generally true when the answer is objectionable and is not responsive to the question. . . . There are numerous cases which require that course to be taken in order to save the party’s rights.” Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. The objectionable part of the answer was volunteered by a witness. If it had been responsive to the question, the evidence would have been competent against Battle. However, the other defendants, upon request, were entitled to have the admission restricted to Battle who made it.

The foregoing and many other authorities recognize that a witness may insert in his answer something which was beyond the question, but when that occurs the attorney for the complaining party should move to strike or to limit the reply, as the interest of his client may require. Even valid objections may be, and are usually *521 waived in the ordinary case by failure to follow the recognized practice by motion to strike or by motion to limit if the evidence is not competent against all charged. This appears to be such a case.

No error.

Moore, J., not sitting. Sharp, J., dissents.