State v. Hicks

282 N.C. 103 | N.C. | 1972

HIGGINS, Justice.

The defendant’s many objections to the trial do not find support in the record before us. The offense was committed on the night of October 4, 1970, in Polk County. A warrant charging burglary in the first degree was executed on October 19, 1970. The defendant was arrested in South Carolina, waived extradition, and was returned to Polk County on October 24, 1970. On January 26, 1971 (the first criminal session after the arrest) Judge Hasty, without objection, entered an order finding the defendant could not be tried in Polk County until the August session of superior court; that he had a record of one escape; and that the Polk County jail was unsafe. Based on these findings, Judge Hasty entered an order transferring the defendant to the State Department of Correction for assignment by the director to a safe prison. The order directed his return to Polk County two weeks prior to the beginning of the August session of the superior court, to the end that his attorney could confer with him and make trial preparations.

However, the prisoner was actually returned twelve days before the beginning of the court, rather than the two weeks fixed in the order. Nevertheless, nothing indicates any lack of time to prepare for the trial or other prejudice resulted from the two days’ delay. State v. Flowers, 244 N.C. 77, 92 S.E. 2d 447. The record does not show error or prejudice in the denial of the motion to continue. Likewise there was no merit in the motion to dismiss for failure of the State to give the defendant a speedy trial. State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274. Actually the defendant was indicted at the first criminal session of Polk County Superior Court January 25, 1971, after the commission of the offense. He was tried at the first session for criminal cases which convened thereafter.

The defendant contends that the State’s evidence was insufficient to survive the motion to dismiss. The contention cannot be sustained. Mr. Clark saw the defendant first when he asked to borrow a screwdriver on Friday, and again on Saturday when he called at the Clark home posing as a salesman. These calls apparently were to “case” Mr. Clark’s home where antiques worth many thousands of dollars were kept. Mr. Clark testified that he recognized the defendant without question although he had a thin women’s stocking over his face. “The stocking did blunt the full facial features but the profile was still the same and particularly under a strong light.” Mr. Clark further testified that while he was still in the house “I observed his ears and everything physical about him . . . and how he carried his head. He does not carry his head straight, he carries it slightly to the left.”

On cross-examination by defense counsel, Mr. Clark testified he had seen some photographs of the defendant in the possession of the police department. However, he made it plain that these photographs played no part in his identification of the defendant. The trial court so found. Mr. Clark testified: “ . . . I am an architect and I have been trained to observe details for over 50 years.”

The court’s finding that the identification was of independent origin and the photographs played no part in the identification of the defendant is supported by competent evidence. The defendant’s motion to dismiss was properly denied. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1.

The broadside objections to the charge cannot be sustained. In fact we find nothing “off color” in the trial.

No error.