No. 735SC582 | N.C. Ct. App. | Feb 6, 1974
Defendants contend that the trial court committed prejudicial error upon two occasions in allowing, over objection, testimony which invaded the province of the jury.
Specifically, defendants first contend that the District Attorney invaded the jury province in asking Brown the following question: “The 1968 Ford that you were driving or riding in the day that you and these two defendants stole the Geedy vehicle, whose Ford was that?”
An examination of the record reveals that the question objected to was propounded after Brown had testified to the acts involved in the larceny in which he had participated. Furthermore, the first statement by Brown using the phrase, “On the day that I say the three of us stole Mr. Geedy’s car, ... ”, was elicited from Brown during cross-examination. The District Attorney, in formulating the question during redirect examination, relied upon prior testimony which was admitted without objection. This assignment of error is overruled.
Defendants also contend that the testimony of Detective Page that he stopped and took into his possession the same vehicle described by the preceding witness invaded the province of the jury in determining whether or not it was the same vehicle.
Prior to the testimony of Detective Page, State’s witness Edward L. Johnson, a car salesman, had testified that he had sold a 1966 Chevrolet Chevelle to defendant Davis. A bill of sale was introduced showing that a 1966 Chevrolet Chevelle, serial number 138176A125187, had been sold to defendant Davis.
The evidence discloses that on 11 September 1972 Detective Page took into his possession the 1966 Chevrolet Chevelle operated by James Russell Davis, brother of defendant Davis, following the arrest of James Russell Davis for the offenses of driving without an operator’s license, driving without a registration card, and operating a motor vehicle without liability insurance. The vehicle was then impounded according to standard procedure in order to protect the vehicle and its contents. In order to make a record of the vehicle he had impounded, Detective Page examined it to obtain its serial number. After 11 September 1972 the vehicle was examined by John Edward Geedy at Parrish Wrecker Service. Geedy identified the stolen parts which had been installed in the impounded vehicle.
Defendants at this point requested a voir dire; the trial court declined to hold a voir dire. Defendants contend that the trial court committed error in denying the request for a voir dire into the legality of the impoundment of the 1966 Chevrolet and the subsequent search and seizure of certain items therefrom.
Impoundment of an automobile subsequent to the arrest of the operator is a necessary step in arrest procedure. Impoundment not only serves the function of protecting the vehicle and its contents while the operator is in custody, but also protects the arresting officer and the governmental agency which employs the officer from litigation which might result from leaving an unattended automobile on the public highways or streets. We find no material challenge to the legality of impounding the vehicle subsequent to a valid arrest. The evidence was already before the Court and a voir dire was unnecessary.
Had the vehicle in question been searched by the police, it seems that the search would have been a valid search, even if the stolen articles were accidentally uncovered in the course of the search. An inventory search of an impounded vehicle, pursuant to a lawful arrest, where the search is not a direct search for
This search was made by a private individual, John Edward Geedy, in an attempt to find property stolen from him. The record does not suggest that Geedy searched at the request of the police. Inasmuch as the search was made by a private individual, not a governmental agent, no question of an unlawful search of the vehicle in the constitutional sense is raised. The trial court was correct in allowing the witness to testify following denial of the request for a voir dire. This assignment of error is overruled.
In our opinion, the defendants had a fair trial, free from prejudicial error.
No error.