State v. Johnson, 20 N.C. App. 53

20 N.C. App. 53 | N.C. Ct. App. | 1973

BALEY, Judge.

Defendant contends that there is a fatal variance between the indictment charging armed robbery of Betty Culp and the evidence which indicated that the money taken actually belonged to the Charlotte Housing Authority. In larceny cases it is important that the ownership of the stolen property be alleged and proved, State v. Jessup, 279 N.C. 108, 181 S.E. 2d 594, but the criminal offense here charged is armed robbery.

In robbery cases under G.S. 14-87, “[t]he gist of the offense is not the taking, but a taking by force or the putting in fear.” State v. Sawyer, 224 N.C. 61, 65, 29 S.E. 2d 34, 37. Therefore an indictment for robbery need not specify the person who owned the property taken. A robbery indictment is sufficient if it shows that the property taken was the subject of larceny (see State v. Guffey, 265 N.C. 331, 144 S.E. 2d 14) and that defendant was not taking his own property. State v. Spillars, 280 N.C. 341, 185 S.E. 2d 881; State v. Rogers, 273 N.C. 208, 159 S.E. 2d 525; State v. Lynch, 266 N.C. 584, 146 S.E. 2d 677; State v. Sawyer, supra. The indictment in the present case satisfies these criteria.

Defendant asserts that the trial court erred in admitting the identification testimony of Mrs. Culp and Mrs. Wrenick. The court properly held a voir dire hearing on this testimony. “When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine1 whether the proffered testimony meets the tests- of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts.” State v. McVay, 277 N.C. 410, 417, 177 S.E. 2d 874, 878; accord, State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677; State v. Smith, 278 N.C. 476, 180 S.E. 2d 7; 1 Stansbury, N. C. Evidence (Brandis rev.), § 57, at 176-77.

There is ample evidence to support the court’s finding that the witnesses’ in-court identification testimony was not tainted by the illegal lineup. Both Mrs. Culp and Mrs. Wrenick testified that defendant was in their office for at least fifteen minutes. During this time he engaged in conversation with each of them. Clearly, both witnesses had sufficient time to become familiar with defendant’s appearance; they did not learn to recognize him for the first time at the lineup.

There is also competent evidence supporting the trial court’s decision to admit the photographic identification testimony. H. R. Thompson, a member of the Charlotte police department, testified that he showed Mrs. Culp a group of five photographs, one of which was a photograph of defendant. He later showed the same photographs to Mrs. Wrenick. Both picked out defendant as the man who had robbed them. Thompson stated that he did not suggest to either witness that she should choose the photograph of defendant. An examination of the five photographs shows that none of the five men pictured is strikingly different in appearance from the other four. It was entirely appropriate for the court to conclude that no improperly suggestive procedures had been used in obtaining the photographic identification testimony.

The trial court committed no error in upholding the bill of indictment or in the admission of testimony. Defendant’s conviction was proper and should be affirmed.

Affirmed.

Judges Morris and Vaughn concur.