State v. Breeze

26 N.C. App. 48 | N.C. Ct. App. | 1975

MORRIS, Judge.

Both of the assignments of error brought forward and argued in defendant’s brief relate to the testimony of witnesses offered by the State in rebuttal. By his first assignment of error defendant contends the trial court erred in allowing rebuttal witnesses Gaskins and Benson to testify as to statements made by defendant regarding any subsequent cigarette sale in Charlotte. In his second assignment of error defendant contends the trial court erred in allowing rebuttal witness Holder to testify regarding any sale of nonexistent cigarettes in Durham. We find no merit in either of the defendant’s contentions.

In State v. Long, 280 N.C. 633, 187 S.E. 2d 47 (1972), defendant had testified on cross-examination, over objection, that he had not gotten the pistol used in the attempted armed robbery for which he was convicted in a previous completed armed robbery of a Little General Store. In rebuttal, the State examined a witness who, over objection, was allowed to testify that he worked at the Little General Store which was robbed by defendant and that in the robbery defendant took the pistol in question and carried it away. In the case before the court defendant had denied any intent to commit a robbery, his defense being that he had asked for a refund for a dime which he had inserted in a machine which did not deliver the merchandise, that prosecuting witness refused to give the refund, and he drew his pistol to obtain the refund, was involved in a fight to get the pistol, and ran. The Court held the cross-examination was not a collateral matter by which the State was bound but was an inquiry tending to establish an essential element of the crime for which he was being tried; i.e., the intent to deprive the owner of his property permanently and convert the property to defendant’s use. Additionally, the Court noted the general rule “that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense. Stansbury, N. C. Evidence 2d, § 91. The rule and eight well-defined exceptions to it are thoroughly discussed and documented in a scholarly opinion by Ervin, J., in State v. McClain, 240 N.C. 171, 81 S.E. 2d 864 (1954). “The second exception to the rule is expressed in McClain as follows: ‘2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused.’ ” State v. Long, supra, at 641. The Court held that the rebuttal evidence fell within that exception and was competent as substantive evidence bearing on the criminal intent of defendant.

We think Long is apposite to the case before us. Here the defendant testified that Hall had planned to trick Jones and had tried to get him involved, but he had refused and that he had never seen Deans and Williamson. Thus defendant is denying that he had any intent to take the money of the prosecuting witness. Like Long, “[h]is intent is a relevant but disputed fact which the challenged evidence tends to prove”. It is not inadmissible simply because it tends to show that defendant may have been guilty of an independent crime.

No error.

Judges Vaughn and Clark concur.