*1
SPRING TERM 1979
mission
tois
assist utilities in the provision
telephone
of
and
areas,
electric service to rural
might
which
go
otherwise
Thus,
unserved.
a major
while
bank
choose to
might
initiate
utility
bankruptcy against
which
pay-
defaulted on
loan
ment, REA
traditionally
has
not chosen
do
so.
argues
Mebane
its small size
inappropriate any
makes
comparison between its
of equity
cost
and that
larger
of
com-
panies like Central
&
Telephone
Western Westco. It also
argues that the
did
Commission
not sufficiently consider the thin-
ness of its
capital
calculating the risk to its investors. Both of
objections
these
go solely to
weight
which the Commission
gave
testimony
of its expert
credibility
witness. The
Commission,
Court,
witnesses is a matter for the
and not this
Co.,
determine. Utilities
v.
Commission
Telephone
For reasons stated in this decision opinion the Appeals Court of affirming order of the Utilities Commission Affirmed. BRITT
Justices BROCK did participate the con- sideration or decision this case.
STATE NORTH OF CAROLINA DOUGLAS ARTHUR LYLES and DAVID ROSE JONATHAN
No. 68 (Filed 1979) September — 5; Burglary Breakings § § Larceny and Unlawful 7— of motel room — larceny sufficiency of items degree burglary There was sufficient evidence for of first larceny against go felonious one defendant where such evidence IN THE SUPREME COURT *2 v. State “fumbling” the was seen around 2:30 a.m. to that defendant tended show seen, motel; he he had been the at a when discovered he door knob of office seen, away; was was first it ran within one hour after hе turned and and, ajar standing at the motel were that doors to two the rooms discovered de- burglarized; at about 6:15 a.m. subsequently, that one them had been car; the again leaving in his codefendant’s when fendant was seen the motel car, was back at down person saw defendant then looked the who key the sight; car uncovered a master behind out a later search of the side; tested, key opened passenger the door of panel kick when on entry; burglarized; signs no of forced had been that door showed room thаt it to occupant testified that he had locked before and the room bed. — 5; Larceny § § Burglary Breakings 7— of motel room 2. and Unlawful insufficiency of evidence degree burglary Evidence one defendant in first felonious jury larceny to was submitted to the where it tended case insufficient to be only was with his near the scene of show that defendant seen codefendant discovered, was to after crime and master crime some three hours burglarized was found in defendant’s car on the motel which riding, but there was no passenger where the codefendant been side key. the crime scene so as to use the evidence that defendant at charged § 92.1— two defendants with same crimes—consolida- 3. Criminal Law proper tion degree consolidating charges of first did err in for trial The trial court defendants, larceny against was merit two and there no burglary and felonious because, argument prejudiced if trials had that he was to one defendant’s consolidated, burglarized the motel found in a master to against him. have been admissible other defendant’s car would not disrеgard § to error 96— evidence stricken —no instruction 4. Criminal Law —no prejudicial failing in instruct the The trial court did not commit error to immediately allowing a jury disregard after motion to a witness’s answer to strike. 89.2, testimony §§ strike —no 96— not corroborative—failure to 5. Criminal Law prejudice testimony failing in order certain offered Even if the trial court erred to apparent it became that the witness who stricken once corroboration testify, prejudiced thereby defendant was not would not to be corroborated testimony nothing added tо the State’s case. “corroborative” since such —standing § of one other than Seizures 15— search of vehicle 6. Searches and object to owner object standing to a search of the codefendant’s had no Defendant of items and to seizure therefrom. SPRING TERM 1979 State jury § request Criminal Law 122— additional instructions after retirement — State —no error bringing jury The trial did in court not err back into courtroom retired, they informing fifteen minutes after quested them that the State had re- concert, instruction, acting an giving instruction and then such clearly conveyed duty give equal since the court weight their all the court’s instructions. part Justice Brock took no the consideration or decision of this case. dissenting Justice as to defendant Huskins joins dissenting Justice Carlton opinion. *3 Donald L. Judge May Smith at the 16 1977 Session BEFORE
of HALIFAX Superior Court and on bills of indictment proper form defendants were tried and convicted of first degree burglary larceny. felonious Each defendant was sentenced to imprison- ment for life the burglary conviction and imprisonment for ten years larceny on the concurrently сonviction to run with the life 7A-27(a). sentence. Defendants appeal pursuant to G.S. permit- We ted initial larceny review of the pursuant conviction to G.S. 7A-31(a). The case was docketed and argued as 5No. at the Spring Term Edmisten, General, L. Attorney by Elizabeth C. Bunt- Rufus General,
ing, Assistant Attorney the State. Crew, W. Attorney appellants. Lunsford for defendant EXUM, Justice.
Defendants’ principal assignment of error challenges trial court’s denial of their motion dismiss at the close of the state’s evidence. We hold that the evidence was sufficient to gо to the jury as to defendant not Rose but as to defendant With raised, (1) regard to the remaining points we hold: there was no (2) defendants; error the consolidation of the trials of the two the trial court did err not to defendant prejudice Rose’s in its rul- (3) evidence; ings on the standing Rose had no object (4) car; to a search of defendant the trial court did not err in giving additional requested instructions state. IN THE SUPREME COURT working L. E. showed that Johnson
The state’s evidence in Roanoke Howard Motel auditor at the Johnson’s night as a 2:30 he February 1977. Around a.m. of 24 morning on the Rapids his of- of the door outside fumbling with the knob heard someone admission, Johnson went guest Thinking seeking fice. over, it was curtain, come to the man to back motioned for pulled he whirled and ran the man saw Johnson door. When front he Rose. man saw as defendant away. Johnson identified the Officers Whitton and Bobbitt police. then called the Johnson de- five minutes after his call. Johnson arrived within four to area Upon he them. searching scribed man had seen to described, they did man he find they did not find the be unoc- ajar. Room turned out to doors to two rooms 204 was Mr. After cupied. occupied Room Cecil Coletrain. difficulty, him managed some to awaken about officers $140.00, which he had laid on table missing a.m. Coletrain He to bed. had locked his door before the room before He did know either defendant and retiring. given permission either of them to enter his room. signs Whitton stated that there were no of “I physical
Officer He entry on the door to Coletrain’s room. also testified: forced *4 more and made through night the motel lot two times that drove a We individual car premises. visual check of the looked at each unlocked, We found to be locked and some to be on the lot. some I know that tampered but none to have been with. appeared I a [Lyles] wagon. drives Malibu station Douglas Chevrolet I checks that during periodic did not see that automobile the throughout night.” made the Matta, A1 manager 5:30 a.m. called Mr.
About Johnson about the break-in and described the motel. Johnson told Matta and Matta motel about 6:15 a.m. man he had seen. came to the laundry area it. He saw a сar room parked walked around usually were He started toward the office to parked. where none by a if car was and was registered interrupted guest see at car he came directions. When he returned to look seeking and inside. He sitting recog- ten feet of it saw two men within like had de- nized as the man Johnson passenger looking away him. Matta looked and when he looked apparently scribed to The sight. back the was down in front seat out passenger TERM 1979 SPRING Lyles car away. then backed out and started Matta identified the driver Lyles as defendant Rose. passenger motel,
Mr. G. was a C. Southerland also at the guest staying shortly Room He discovered after he awoke around 7:00 watch, 24 February a.m. on 1977 that he was a some missing jewelry $75.00 $80.00. He then noticed his door was slight- ly ajar. He did not otherwise notice the condition of the door. Southerland stated he had closed and locked the door go- before ing to bed. He did not know either or Rose and had not given them permission enter his room. officer,
Danny a Rogers, Rapids police Roanoke found car fitting the description of the one seen Matta around noon on 24 February 1977. The at Walser parked Motor Company where defendant worked. It was registered to him. Matta identified it as the car he had seen. At approximately p.m. found, the police searched the car and among things, other color, bedspread key. and a The bedspread similar design Johnson’s, and shape to those used at Howard it was not positively identified as being from there. a “kick behind panel” side passenger the car. Matta identified it as motel key. master It was tried on into,
the doors of the rooms broken and it opened them. Defendants offered no evidence. At the close of state’s evidence, they made a insufficiency motion to dismiss evidence to sustain a conviction. This motion was allowed as to the charges arising out of the alleged Southerland theft and denied as to arising alleged out of the Cole- train burglary and theft.
We deal at the outset with defendants’ contention that their motions to dismiss should have been allowed as charges. Defendants concede there was sufficient evidence to establish the however, commission of the charged. They crimes argue, that the *5 identify evidence was insufficient to them as perpetrators. The against case these defendants consists of circumstantial sufficiency evidence. The test of the of the go evidence to to the jury such case was stated Justice Higgins State v. (1956): 383-84, 380, 431, 244 N.C. 93 S.E. 2d Stephens, 433-34 THE SUPREME IN COURT favorable light in the most
“Taking the evidence State, . . . discloses substantial evidence if the record ac- for which the constituting elеments the offense
material tried, trial court’s then this court must affirm the cused was the trial court on the The rule this and for ruling motion. direct, evidence is or same whether the circumstantial is the of both. or combination deci- in some of the are advertent to the intimation
“We evidence to withstand circumstantial that involving sions must be inconsistent nonsuit the circumstances motion for every hypothe- and must exclude reasonable with innocence given is We think the correct rule guilt. sis that of except S', 904, Simmons, 780, S. quoting 83 S.E. 2d from v. N.C. Johnson, any S.E. ‘If 730: there be N.C. or which the fact in issue tending prove evidence fairly logical as a reasonably conduces to its conclusion deduction, merely as raises a suspi- and not such legitimate it, be conjecture in the case should submit- regard cion or way is there jury.’ saying The above another ted of the be substantial evidence of all material elements must It is immaterial withstand the motion to dismiss. offense to direct, or whether the substantial evidence is circumstantial must a motion to grant both. To hold that the court or unless, court, the evidence ex- оpinion dismiss of the every would in ef- cludes reasonable of innocence hypothesis facts. the trier of the presiding judge fect constitute evidence is before the court can guilt required Substantial beyond a jury. send the case to the Proof of reasonable guilt What is required doubt is before the can convict. question substantial evidence is a of law for the court. What prove fails to is a of fact for proves question or jury.” here, then, any whether there is substantial question evidence that defendants were the perpetrators alleged them, quantum crimes. Since the of evidence differs as to each of separately. we discuss each shall
[1] The evidence Rose was that he was seen around a.m. with the door knob of the office at “fumbling” When he had the Howard Johnson’s Motel. he discovered *6 TERM SPRING seen, away. he turned and ran Within an hour after he was first seen, it was discovered that doors to two of the rooms at the and, ajar motel standing subsequently, were that one of them had At 6:15 burglarized. about a.m. Rose was again leaving seen Lyles’ the motеl in defendant car. When the saw person who him then back looked Rose was down out sight. of A later search of car key the uncovered motel master behind “kick panel” on tested, key side. When passenger opened the door of the had room that been burglarized. That door signs showed no of entry. forced occupant the room he testified that had locked it before to bed. Viewing this light most favorable to the
state, it shortly establishes that Rose premises was before the crimes were discovered. His behavior suspicious. was He attempted by twice to avoid seen being personnel, once he when was fumbling discovered the door knob to the motel office It is itself. reasonable to from infer these circumstances and his from on the presence passenger side he in possession of the motel master found there. A reasonable inference also arises that this used gain en- room, try burglarized to the since entry there were no signs being forced. account, all these
Taking circumstances into we hold there was sufficient evidеnce the degree for of first larceny and felonious defendant Rose go jury. We find our v. support holding Lakey, in State 270 N.C. 154 S.E. 2d Lakey The evidence in showed that Farmers Exchange building Pittsboro had been broken into and an attempt that there, had been made to rob the question safe. The here, whether defendant was the perpetrator of Polston, the crime. A Mr. Sam lived neighborhood, who heard knocking coming noises banging from Farmers Ex- change A building police. police called officer arrived Shortly Brady about a.m. thereaftеr he saw one Douglas run- vicinity from the ning building. About same time saw the Polston defendant come running across the Farmers Ex- yard. change morning Later that defendant’s car was found parked three miles road and mile one railroad tracks from the Farmers Exchange building. Brady Fingerprints Douglas were in car. IN THE SUPREME COURT
State *7 variations, defend- evidence against While are some there Lakey. as in compelling and least similar to at ant Rose as to denying to dismiss did not err in the motion The trial court Rose.
[2] motel seen The state’s evidence parked premises near the about 6:15 a.m. on laundry room Matta. first placed 24 by February 1977. His car defendant Shortly Lyles on the thereafter, Lyles was in the car. Lyles leaving saw and Rose Matta Matta, any to “the car did not According speed driver. That 158 toward Roanoke Rapids.” on headed got fashion key. Lyles’ car revealed the master afternoon the search of light in the to Viewing this evidence most favorable state, in an was found at 6:15 a.m. parked it shows that usually his actions parked. are not Otherwise area where cars In and of suspicion as to excite themselves. were not such (1) his seen with against being the case him consists of essence near the of the crime some three hours defendant Rose scene (2) possession and his constructive after the crime discovered in his While as noted above motel master found car. of the key was en- gain is a inference that the used to there reasonable room, is a as to whether try question to Coletrain’s there serious Lyles was rise an inference evidence to that defendant gives scene so use it. on the Lyles is much like against In this the case defendant respect Burton, 687, 883 Burton 272 N.C. 158 S.E. 2d In State into, the had been broken Supply Company
the General Electric only $300 evidence the de- safe and stolen. opened, days in their three was a crowbar some possession fendants found having was identified scientific tests as later. This crowbar This held that the defendants’ used in the break-in. Court id. have been at granted, stating for nonsuit should motion 2d 887: 158 S.E. at
“In State at place instant case the fails to defendants crime date crime was or near the scene of the on the committed; any fails to of the ‘fruits of crime’ show defendant, solely either and relies possession upon posses- by someone in the commission of the sion of a crowbar used elements crime show ‘substantial evidence of material True, evidence is sufficient the in- put of the offense.’ TERM 1979 SPRING crime, used at the strument scene of the but whether one defendants, defendants, both or or either of the person defendants persons or who or about did, January ‘unlawfully wilfully feloniously use of crowbar and other tools force safe of open Ave., General Electric Supply Company, Seaboard C., chattels, N. Raleigh, valuables,’ used storing money and other remains the realm of speculation conjec- ture.”
So it is here with defendant Even assuming the room, was the instrument used to enter Coletrain’s the state’s place does not anywhere near the scene *8 of the crime until some three hours after it must have been com- mitted. The state’s testimony evidence includes positive by Of- Lyles’ ficer Whitton that car was not on the motel lot the during night. Nо of the Lyles’ fruits crime were found on person or in his basis, Admittedly, car. as his suspicion guilt to has some but it rests on speculation rather than reasonable inferences arising from evidence. The trial court erred in denying the to motion dismiss as to defendant
[3] Defendant Rose also contends that the trial court erred in allowing trials in these cases to be consolidated despite de fendants’ motions for separate “Ordinarily, trials. unless is it therefrom, shown that irreparable will prejudice result consolida trial tion for rather than multiple individuаl trials is appropriate when two or more are persons indicted for the same criminal of fense(s).” Jones, 322, 333, 858, State 280 185 2d N.C. S.E. 865 15A-926(b). (1972);see G.S. argues Defendant Rose that there was consolidated, here prejudice because if the trials had not been key found in car would not have against been admissible him. This argument clearly is without merit. The ad 536, Rose. State v. 5 Gatling, missible See 169 App. N.C. (1969)(watch 60, 625, S.E. 2d 275 S.E. 2d 593 N.C. found aff'd admissible). car some hours defendants were in after it held assignment This is overruled. error
[4] Defendant Rose next assigns as error trial court’s failure jury to рroperly instruct to ordered stricken from the record. The took following exchange place during direct E. L. examination of Johnson: IN COURT THE SUPREME
“Q. your mind that David Rose any Is there doubt you at the door at night fumbling person was the saw 2:30 in the morning?
MR. Object. Crew: No,
A. sir.
MR. to strike. CREW: Motion
THE to strike allowed. COURT: Motion 6” EXCEPTION NO. error prejudicial that the trial court committed argues
Defendant immediately jury the answer. instructing disregard Co., 266 In v. Insurance N.C. agree. We do not Moore (1966), to strike S.E. 2d 492 the trial court allowed a motion jury prej- found no accordingly. failed to instruct This Court error, 450, 146 S.E. stating, udicial id. at 2d at 500:
“Although procedure, allowing motion proper upon an responsive strike answer is for the question, immediately jury court answer, to instruct not to consider the instance, do
we think the failure to so in this strike, view of the court’s allowance the motion prompt only have prejudicial interpreted is not error. The could answer ruling meaning given court as that the *9 as in the case.” regarded the witness not to be moreover, note, We reasoning The same here. that applies already positively identified person had Rose as the he Johnson fact, that of in saw. Given his reiteration his identification have so as prejudiced manner described could not defendant to that, had the in possibility question raise a “reasonable error not committed, a result would have been reached.” different This is G.S. 15A-1443. of error overruled. assignment The trial court likewise did not err to defendant’s prejudice [5] in testimony by certain the witness Matta. Matta iden admitting key key. as a Lyles’ tified the found in motel master He also Gilliard, by yard had Percy that he been told one man testified Johnson’s, key. at Hоward that Gilliard lost his master This purposes latter statement admitted for corroborative ac court, by objection the trial no companying although instructions SPRING TERM 1979 it or request appears to instructions defendant testified; thus, record. never nothing Gilliard there was for the was, testimony supposedly corroborative to It corroborate. therefore, 273, Taylor, inadmissible. State 185 S.E. 2d N.C. it was for the trial order
Assuming error court not to testimony stricken once it became Gilliard would apparent testify, we see no to prejudice its failurе to do so. The essential of testimony thrust Matta’s was that the was a which would master unlock the room had been that burglarized. That it might have been lost Gilliard someone or nothing else added to the case. assignment state’s This of error is overruled.
[6] Defendant Rose next
assigns
error
trial court’s denial
to suppress
Lyles’
motion
the items seized
car.
from
We
already
have
held that
items
these
were admissible against Rose.
He has
standing
object
no
to
to the search of
car and their
Curry,
seizure therefrom. State v.
(1975).
288 N.C.
[7] Defendant Rose’s final assignment of error relates to the court’s charge “acting trial His is objection in concert.” not to is, rather, charge. the content of the bringing It to court’s back jury they into fifteen courtroom minutes after retired them informing requested that the state had the instruction. Defendant argues jury that this encouraged give to undue em to this We do phasis instruction. At the agree. close this you additional instruction the court I “Again trial stated: remind you I gave instructions to and I earlier am not those, deliberations, course, you repeat your must con sider аll of you by the instructions have been given to clearly conveyed duty This give Court.” their equal weight the instructions. This assignment of error over ruled.
We need not brought discuss the remaining exceptions for- they ward as a prejudicial only could have had effect as to defend- *10 Lyles. ant Lyles.
Reversed as to defendant Douglas Arthur IN THE SUPREME COURT Lyles State v. as to David Jonathan Rose. No error defendant consideration participate BROCK did or Justice case. decision of this dissenting as to defendant
Justice HUSKINS
majority
portion
opin
I
from that
respectfully dissent
the mоtion
denying
erred in
which
that the trial court
ion
holds
Lyles. The
def
places
State’s
to dismiss as to
with the knob on
premises fumbling
the motel
endant Rose on
February
of 24
morning
2:30 a.m.
around
on
the office door
Lyles
premises
first seen on the motel
about
was
Defendant
in his
station
morning
blue-green
wagon
a.m.
same
that
Lyles
Rose left in the vehicle
laundry
near the
room.
parked
himself. A
to conceal
Lyles driving
attempting
and Rose
Lyles
a later
sta
key
missing
was
search
master motel
panel”
“kick
a master motel
behind the
wagon uncovered
tion
rooms,
tested,
which,
of the motel
includ
opened
when
doors
The doors showed no
burglarized.
the rooms that
ing
entry
they had
and the
testified
locked
occupants
of forced
signs
Lyles
a
to bed. The
vehicle also contained
the doors before
like the
used
the Howard Johnson motel
bedspread
bedspreads
missing
burglary.
was
after the
bedspread
rooms. Such
were
Lyles
wagon
and his station
fact
after
does not re-
premises
burglary
discovered
until
Lyles
him.
was discovered
quire
dismissal of
away
premises in a vehicle
registered
Rose
from the
driving
Lyles’
together
subsequent
name. This circumstance
with the
car,
discovery
bedspread
of the master
and the
rise to
inference that
gives
permissible
unexplained,
Mr. Inside
joint
venture —Rose
serving
burglary
support
as Mr. Outside. These facts
the further inference
Rose,
being
that while the
committed
Rose,
nearby,
ready
knowledge
to the
to furnish the means of
(either
are
actually
“It
settled law that all who
escape.
present
constructively)
are
place
aiding,
or
at the
a crime and
either
commission,
are
аdvising
present
or
in its
or
abetting, assisting,
knowledge
perpetrator,
for such
of the actual
are
purpose,
Holland,
equally
and are
N.C.
principals
guilty.”
In my when considered the light most favorable to State, carry the evidence is sufficient to the case to the and support a verdict of guilty as as an aider and abet- tor, and guilty thus as a I equally principal. uphold vote to convictions of both defendants. joins
Justice this dissenting opinion. CARLTON STATE OF NORTH v. ERNEST CAROLINA RAYMOND HARDY and DENNIS RAY HARDY
80No. (Filed 1979) September 6;§ § 1. Battery police Arrest and 4— Bail Assault and assault on officer —rеsist- ing police —separate officer offenses office, charge resisting duty discharging of an officer who is a of his 14-223, G.S. a charge assaulting is not lesser included of offense a of law office, 14-33(b)(4); duty discharging enforcement officer while he is a of his G.S. however, statutes, given might in a the facts case a constitute violation of both punished but defendant could not be twice for the same conduct. § 2. police Arrest and 6.1— charged Bail assault on officer in warrant —conviction jurisdiction resisting of judgment officer —no of court to еnter officers, charged upon police Where defendants were with assaults two jurisdiction the trial upon court was without judgment enter verdicts con- officers, victing resisting of resisting defendants arrest those since arrest is assaulting police lesser included offense officer. 6.2; Battery § police § Arrest and Bail Assault and 15.4— assault officer resisting charged require officer resisting election —conviction of- —failure jeopardy ficer—no double Although trial requiring court erred in not the State to elect at the close of the resisting assaulting evidence between the police submitting officer and in guilt resisting the issue of defendants’ as a lesser officer, harmless, degree assaulting of the offense of such errors were (1) since properly charged defendants were resisting valid warrants (2) officer, crime, only resisting, defendants were convicted of one and the dou- (3) jeopardy ble inapplicable, rule acquired therefore court trial jurisdiction resisting charge appealed when defendants their convic- tions in the District Court. did participate Justice Brock decision consideration or of this case.