State v. Craddock
158 S.E.2d 25
N.C.
1967
Check Treatment
PARKER, C.J.

The trial court having found that all the defendants were indigent entered an order allowing them to perfect their appeal in forma pauperis and appointed J. Phil Carlton, their trial attorney, and Marvin V. Horton to represent them in this Court. The court’s order further directed that the County of Edgecombe should furnish defendants with a transcript of the evidence in the case and the charge of the court and that the record and the briefs of defendants should be mimeographed according to the rules of this Court under the direction of its Clerk at the expense of Edgecombe County, thus giving these indigent defendants the opportunity to perfect their appeal and present their case to this Court in the same fashion as if they were each fully solvent.

Defendants assign as error the order by the court consolidating the four indictments for trial. The four defendants were charged in four separate indictments with participating in the same crime as principals. The State relied upon the same set of facts at the same time and place as against each defendant. The consolidation was proper and was authorized by the provisions of G.S. 15-152. It prevented four trials involving the same facts. S. v. Spencer, 239 N.C. 604, 80 S.E. 2d 670. Under the provisions of G.S. 15-152, the order *167 of consolidation, upon motion of the solicitor, was within the discretionary power of the court, and no abuse of discretion appears. S. v. Truelove, 224 N.C. 147, 29 S.E. 2d 460. This assignment of error is overruled. It would seem that the solicitor for the State would have drawn one indictment charging all four defendants with the crime. The drawing of four separate indictments served no purpose, except to increase the court costs.

F. K. Simmons, Jr., a Rocky Mount police officer, after first testifying that at 4:30 a.m. on 14 February 1967 in the city limits of Rocky Mount he saw a 1959 red and white Ford automobile bearing Florida license No. 2-W-42973, was asked: “How long had you been looking for the car?” Over the objection and exception of defendants, he was permitted to answer: “Since the 7th of February when the State Bureau of Investigation bulletin came out.” Police officer G. W. Griffin, who was with officer Simmons, was asked: “For what reason did you pay particular attention to this 1959 Ford?” Over defendants’ objection and exception he replied: “Prior knowledge from a bulletin we had received from other law enforcement authorities' — •” Whereupon the solicitor asked him: “Do you recall which law enforcement authority you had received information from?” Officer Griffin replied: “Yes, sir, the North Carolina State Bureau of Investigation.” Defendants assign the admission of this testimony as error. The statements were in connection with the automobile and not the defendants. Nothing in the witnesses’ reply referred to defendants, or any one of them. The reply of the witnesses does not support defendants’ contention that it was designed to influence the minds of the jurors against the defendants as being notorious criminals before the relevant facts of the case were presented. Even if we concede that this evidence was irrelevant, we think it was not so prejudicial as to cause a new trial. This assignment of error is overruled. If statements in the bulletin were prejudicial, the defendants brought it out on cross-examination of the witness Plorace Winstead, who testified on cross-examination:

“When I came to work at 3 o’clock I was told by Captain Godwin that these four subjects listed on the police bulletin out of the State Bureau of Investigation office in Raleigh, Rodney Craddock, Michael Bryan, Vernon Jordan and Allen Lunsden, were in jail, that they had been put in jail by the third shift, and that he would like for me to talk with them. As result of that, I took each one out and talked with him.”

Damaging testimony as to what the State Bureau of Investigation bulletin contained appears on page 33 of the record, but this was introduced in evidence after the jury- had been excused on motion of *168 defendants. It was not heard by the jury and could not have been prejudicial.

F. K. Simmons, Jr., testified that when the defendants got out of the car, the officers saw a lock pick in plain view in the front portion of the car about four inches in front of the seats on top of the transmission housing hump, and attached to the lock pick by a rubber band was a makeshift homemade key. The witness was asked: “Just tell what it is.” Over defendants’ objection and exception, he was permitted to answer: “This is a burglary lock pick. I am not a locksmith and therefore I couldn’t go into details on how it is used but I do recognize it as a burglary lock pick.” Defendants assign the admission of this evidence as error for two reasons: (1) This permitted the witness to give an opinion on one of the very questions the jury had to decide, and (2) the instrument which the witness was describing was certainly not a complicated mechanism and the jury was as well qualified as the witness to form and express an opinion with regard to it. G.S. 14-55, the statute under which the indictments were drawn, prohibits the possession, without lawful excuse, of any picklock, and it would seem that the statute contemplates it as being a burglary tool when it is in the possession of someone without lawful excuse. It would seem that a “lock pick” and a “picklock” are the same thing. Webster’s New International Dictionary, Second Edition, defines “picklock” as follows: “(1) One who picks locks, specif, a thief; also, a tool for picking locks.” “Justice does not require that courts profess to be more ignorant than the rest of mankind.” S. v. Vick, 213 N.C. 235, 195 S.E. 779. The testimony'of the witness that this is a burglary lock pick is competent as a “shorthand” statement of collective fact. 2 Strong’s N.C. Index 2d, Criminal Law, § 71. This assignment of error is overruled.

Defendants assign as error the admission in evidence of all the objects found in the automobile and in the refusal of the court to suppress the evidence of the witnesses who testified as to what was found in the automobile. These assignments of error are overruled. (1) The picklock and the key attached to it, the coins, and what the officers saw through the windows of the car by the aid of a flashlight without opening the doors of the car to search were competent In evidence. This is said in 47 Am. Jur., Searches and Seizures, § 20, n. 516:

“Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without a warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.”

*169 This is quoted with approval in S. v. Giles, 254 N.C. 499, 119 S.E. 2d 394, and in S. v. Kinley, 270 N.C. 296, 154 S.E. 2d 95. (2) Defendant Craddock, who was driving the automobile, freely and voluntarily gave his consent to the search of the automobile. The State’s evidence shows that after ascertaining that the defendants were unarmed the two officers who stopped the automobile put their pistols away. The two officers who had blocked the road with their automobile did not take their pistols in their hands. The officers asked Craddock to open the trunk of the automobile. Craddock went to his automobile, took out the ignition key, came back to the trunk of the automobile, and unlocked the trunk. On the voir dire the court found as a fact that there was no duress used at the time of the alleged consent of the owner and operator of the car that it could be searched by one or- more of the officers, and that the consent was freely made upon request. This finding of fact of the trial judge is amply supported by the testimony. No search warrant is required where the owner or person in charge voluntarily and freely consents to the search. Where the owner or person in charge of an automobile voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated. S. v. Bell, 270 N.C. 25, 153 S.E. 2d 741; S. v. Coffey, 255 N.C. 293, 121 S.E. 2d 736; S. v. McPeak, 243 N.C. 243, 90 S.E. 2d 501. The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures. The rights of the defendants other than Craddock were not invaded by the search of Craddock’s car, and they had ño legal right to object thereto. S. v. McPeak, supra. No rule or public policy forbids a person to waive his right to be free from unreasonable searches and seizures. Manchester Press Club v. State Liquor Commission, 89 N.H. 442, 200 A. 407, 116 A.L.R. 1093. (3) The officers made a cursory examination of this car and six and one-half hours later obtained a valid search warrant to search this particular Ford automobile bearing the Florida license aforesaid for burglary tools or instruments, screw drivers, chisels, or other tools used to commit a felony. What was found under the authority of this valid search warrant was thoroughly competent in evidence.

Defendants assign as error the admission of the testimony of police officers Simmons and Griffin that the defendant consented to the search of the automobile he was driving. They contend that the admission of this evidence is prohibited by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974. The Miranda case refers to custodial interrogation by law enforcement officers after a person has been taken into custody or otherwise deprived of his *170 freedom of action in any significant way. Merely asking a defendant for consent to search the automobile is not prohibited by the Miranda decision. This assignment of error is overruled.

Defendants introduced no evidence. At the close of the State’s evidence defendants made a motion for judgment of compulsory nonsuit which the court denied. This denial is assigned as error. The indictments were drawn under the provisions of this part of G.S. 14-55: “If any person . . . shall be found having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of housebreaking; . . . such person shall be guilty of a felony and punished by fine or imprisonment in the State’s prison, or both, in the discretion of the court.”

In a prosecution under the provisions of G.S. 14-55 quoted above, the burden is on the State to show two things: “(1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such possession was without lawful excuse.” S. v. Boyd, 223 N.C. 79, 25 S.E. 2d 456; S. v. Morgan, 268 N.C. 214, 150 S.E. 2d 377. Obviously, the picklock and the homemade key attached to the picklock found in the automobile may be used for lawful purposes, but it is also manifest that they can be used for purposes of burglary. Considering the State’s evidence in the light most favorable to it and giving the State the benefit of every reasonable inference to be drawn therefrom, it would permit a jury to find the following facts: (1) That at about 4:30 a.m. on 14 February 1967 all four defendants were riding together in a Ford automobile bearing a Florida license tag on the streets of the city of Rocky Mount; (2) that in this automobile was a picklock with a homemade key attached to it and a quantity of coins amounting to $484.65, and in the trunk of the car quite a number of clothes and wearing apparel; (3) that the picklock in the possession of the defendants was an implement of housebreaking enumerated in, or which comes within the meaning of the statute, G.S. 14-55; (4) that the coins were scattered inside the car and in the trunk, and that the defendants, after having properly been warned of their constitutional rights, said they were coin collectors and that it was not any business of the police where the coins came from; (5) that they said they did not remember what bank they got the coins from; (6) that they did not know how they got to Rocky Mount, that all they knew was that they were in Rocky Mount; (7) that in the automobile were three or four hanger-type clothes containers stuffed full of clothes, some clean and some dirty, and three regular suitcases, all of them packed full of clothes; and (8) that all the defendants were on a joint enterprise and in joint possession of the objects found in the *171 automobile; that the defendants unlawfully, wilfully, intentionally, and feloniously did have in their possession, without lawful excuse, implements of housebreaking and burglary tools, to wit, a lock pick, two ball peen hammers, assorted wrenches, flashlight, files and bits; and that all were principals and all were equally guilty.

It is thoroughly established law in this State that, without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. S. v. Taft, 256 N.C. 441, 124 S.E. 2d 169. The court properly submitted the case to the jury.

We take judicial notice of the fact that many coin telephone instruments are within buildings and some are on the street. “There is a sufficient breaking at common law, and a ‘forcible breaking’ within the meaning of a statute, where a person enters by unlocking or unlatching a door. . . .” 12 C.J.S., Burglary, § 3(b), p. 670. To the same effect, 2 Wharton’s Criminal Law and Procedure (Anderson Ed. 1957), § 413. Of course, the unlocking and entry of a building must be with the requisite intent to commit a felony therein.

We have carefully examined all the other assignments of error to the admission of evidence and all are overruled.

We have carefully examined all assignments of error to the charge. Reading and construing the charge contextually as a whole, it adequately charges the law on every material aspect of the case arising on the evidence and applies the law fairly to the various factual situations presented by the evidence; e.g., Judge Burgwyn charged the jury as follows:

“The defendants contend, Ladies and Gentlemen of the jury, that if you should find that they had the pick lock in there for the sole purpose of picking the telephone booths along the highways or the streets which they were traveling, and not for the purpose of burglarizing any of the homes, that you should find them not guilty.
“It is a question of fact for you to determine whether or not they had the pick lock in there, and if they did have it in there, for what purpose they had it, whether they had it to rob telephone booths or homes. If you are satisfied beyond a reasonable doubt that they had it in there for the purpose of robbing homes or places of business, picking the locks and entering the homes, you will find them guilty. If you have a reasonable doubt about it, you will find them not guilty.”

While certain expressions in the charge detached from its context may be the subject of criticism, yet reading the charge contextually *172 it leaves no reasonable cause to believe that the jury was misled or misinformed. 4 Strong’s N. C. Index, p. 336. All assignments of error to the charge are overruled.

In the trial below we find No error.