50 N.C. App. 155 | N.C. Ct. App. | 1980
Based on his second assignment of error, defendant contends the court erred in allowing the witness Keith Ashford, when questioned whether he asked the neighbor, Ruth Little, if she saw what happened, to testify as to what Little said and to what his stepfather said. Defendant argues that this testimony was both hearsay and non-responsive, and should have been stricken. We do not agree. Ashford first testified that Little said, “I j ust seen that boy run out of here that was with you.” Essentiall the same testimony, however, was introduced into evidence without objection when Ruth Little gave testimony as a witness later in the trial. Ashford then testified that his stepfather said, “He took my money and hit me like that.” Not only could this testimony be admissible under one of several exceptions to the hearsay rule, e.g. excited utterance, but this testimony also merely
Defendant’s fourth assignment of error relates to the court’s denial of defendant’s motion to dismiss at the close of the evidence. Although defendant acknowledges that the evidence was sufficient to reach the jury on the question of whether the offense of common law robbery was committed, he contends that “there was not enough evidence, direct or circumstantial, to go to the jury on which they could find beyond a reasonable doubt that the defendant was the perpetrator of the crime of common law robbery.” We disagree. On a motion to dismiss for insufficient evidence, the court must find that there is substantial evidence, whether direct, circumstantial, or both, that the offense charged has been committed and that defendant committed it, in order to properly deny the motion. State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). If, on the other hand, the evidence raises merely a suspicion or conjecture as to either the commission of the offense or defendant’s identity as the perpetrator, the motion should be allowed State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). The evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980); State v. Irick, supra.
In the present case, the evidence tends to show that defendant had been in the Alspugh home earlier on the day of the incident; that Keith Ashford was returning to the Alspugh home a short time after-wards when he found the front door locked, which he termed an “unusual” occurrence; that after he knocked, he heard Alspugh yell, and then he heard the back door slam; and that upon running to the rear of the house, Ashford saw defendant running away from the house with “what appeared to be a rifle in his right hand.” The
I saw the defendant inside the Alspugh’s screen door and the other door was open. He had been wearing a white shirt and black pants earlier. At that time, all he had was a little metal piece in his hand. He stood there smiling. I went inside and came back outside and hung some clothes while he just stood there. The screen door seemed to be “dragging” and suddenly, it flew open and he ran onto the back porch----He ran down the hill. By that time, Keith came and asked if anyone came out of the apartment and I said “yes.”
The evidence further tends to show that a rifle belonging to the Alspughs was thereafter found at the home of defendant’s cousin, where defendant himself was found by the Ashford brothers shortly following the incident. In our view, the evidence not only strongly suggests that defendant was in the Alspugh home at the time of the incident in question, but it also raises the reasonable inference that defendant had to be the person who robbed Isiah Alspugh, and thus the trial judge properly denied defendant’s motion to dismiss. This assignment of error has no merit.
Based upon his fifth assignment of error, defendant contends that the verdict against defendant in this case was invalid because the jury foreman did not sign the verdict as required by G.S. § 15A-1237(a), which provides as follows: “The verdict must be in writing, signed by the foreman, and made a part of the record of the case.” We do not agree. The Official Commentary to G.S. § 15A-1237 indicates that the section was intended to eliminate any ambiguity or confusion that might result from the giving of an oral verdict:
It is contemplated that the jury will be given a verdict form setting out the permissible verdicts recited by the judge in his instructions. This procedure should cure a great many defects that occur when the foreman of the jury inadvertently omits some essential element of a verdict in stating it orally.
See State v. Smith, 299 N.C. 533, 263 S.E.2d 563 (1980); State v. Good
Defendant’s remaining assignment of error argued on appeal relates to the denial of defendant’s motions to set aside the verdict and for a new trial. These motions were in turn based on the court’s denial of defendant’s motion to dismiss discussed heretofore. Obviously, this assignment of error merits no further discussion.
We hold defendant had a fair trial free from prejudicial error.
No error.