*1 v. Palmer No error. rape: for Judgment with a child: Arrested. taking indecent liberties
Judgment
PALMER,
STATE
v. JAMES
OF NORTH CAROLINA
alias James Burrell
No. 6
(Filed
1977)
15 December
statutory language
§
and Warrant
9.4— indictment
1. Indictment
language
generally
An indictment couched in the
of .the statute is
suffi-
statutory
charge
cient to
offense.
allegation
§
2. Indictment and Warrant
9—
of ultimate facts
generally
only allege
Indictments and warrants
need
the ultimate facts
constituting
allege
criminal
eviden-
each element of the
offense and need
tiary facts.
11.1;
Battery
§
§
Indictment
and Warrant
9.2—
3. Assault
allegation
weapon sufficiency of
—
seeking
indictments or warrants
a crime in
It is sufficient for
(1)
to name the
which one of the elements is the use of
“deadly
expressly
weapon and
either
state
that the
used was a
allege
necessarily
weapon” or to
such facts as would
demonstrate the
weapon.
character of the
“stick,
weapon”
Battery
§
11.1— assault with
—sufficien-
4. Assault
cy of indictment
deadly weapon”
charging an assault with “a
An indictment
size,
description
weight
properties showing
further
or other
support a
character of the stick is sufficient to
verdict of
Porter,
deadly weapon.
with a
The decision of
On the state’s App. of Appeals, sion of the Court J., McLelland, (1977), at the 10 by judgment entered arresting County Superior Court. May 1976 Session of PERSON Criminal Hudson, Edmisten, General, by Isham B. Attorney L. Rufus General, Jr., the state. Attorney Assistant for Tolin, Jr., attorney James W. for defendant.
EXUM, Justice. with a tried on an
Defendant was injury.1 The inflicting with intent to kill deadly weapon.2 with a a verdict of of assault returned years imprisonment. was sentenced to two Defendant The first is two for decision. presents questions This case in- the indictment holding erred Appeals whether Court it charged the verdict and because judgment sufficient to support stick, further weapon” “a an assault with. size, showing or other weight properties description The second is whether deadly character of the stick. submit failing error prejudicial committed in the af- verdict. We answer both possible questions
assault as a Appeals consequently firmative. The decision of the Court a new trial. and the case remanded for reversed an indictment worded as follows: Defendant was tried on present jurors the State their oath “The June, 1975, day County in Person the 13th on or about Palmer, unlawfully wilfully alias Burrell James James Whitfield, Sr., A. feloniously did assault Grover by body him about and head. beating in serious bodi- was intended to kill and resulted The assault and face in that some teeth were knocked out ly injury, very badly.” beat twenty years, G.S. felony by imprisonment 14-32(a). punishable fine, for not more than or both.
1. A years, G.S. punishable imprisonment fine, two or both. for not more than 2. A misdemeanor 14-33(b)(l). v. Palmer The “stick” mentioned in the bill of indictment was examined It is Appeals Court Court. a hard wooden club ounces, weighing two and eleven pounds approximately 43 end, long, inches two inches in diameter at the club and one and one-half inches in diameter at Conceding handle.
“stick” “could have been described in the bill of indictment suffi-
ciently to show its
character as a
weapon,”
Court of
described,
Appeals nevertheless held that since it was not so
bill
failed to
an assault with a
weapon. Therefore
of Appeals
arrested the
entered against
in the superior court.
Porter,
relied
Appeals
principally
*3
Court
on
v.
State
(1888).
101
In
N.C.
“The
falls short
this re-
for while
quirement,
called a
it is
designated
size,
as
simply
a
with no
description
weight
or
other
or
from which it
qualities
properties
can be seen to be
dangerous implement,
or
calculated in its
put
use to
in peril
great
life or inflict
physical injury upon the assailed.”
We now think the decision in Porter
should
be
longer
no
con-
authoritative,
sidered
and the decision is
overruled.
consequently
It is
that
the
in Porter
apparent
Court
con-
primarily
cerned
whether
with
indictment on its face was sufficient
vest
in
in
original jurisdiction
superior
court.3 The rule
Porter
by
seems to have been one of convenience in that
requiring
in
regarding
detailed statement
the bill
the nature of the
could,
limine,
jurisdic-
the trial court
in
determine whether it had
in
proceed.
analogous
tion to
The same concern
case
appears
for
kill,
jurisdiction
716, cited in
able,
calling
3. Apparently
to commit
period
text;
from an
at
attaches,
of six months after their commission unless the assault was
such,
‘deadly,’
rape,
inspection
and when so
at the time Porter was decided
with
that the
unless
v.
Phillips,
described
so
charge,
describing
with which
in the terms in which it is
786, 10
inflicting
jurisdiction
it
by name,
the.
S.E. 463
justices
serious
assault was
becomes
or with such
of the
(1889).
injury.
apparent
peace
made
See
made
Court
was a
had exclusive
attending
aggravated,
and will be exercised.”
opinion
in
Porter
indictment,
circumstances as show its
in
ie.,
instrument,
Porter;
jurisdiction
said,
done with intent to
“[T]he
to see that its
court
of assaults
v.
N.C.
merely
Battle,
must
at
IN THE SUPREME COURT
Palmer
Battle,
(1902),
where
Court
“We
described was
specifically
should be more
injury
tent of the
standards of the common
much due to the more meticulous
as
law,
which the
and definitions of offenses
concepts
under
of administration
largely through
experience
form
took
and,
statutes;
as a means of
and without
the aid of definitive
safe,’
and often
great,
indictments were viewed
‘playing
Now,
a motion for arrest of
unnecessary,
strictness.
under
indictment,
liberally
in the
it must be
for a defect
Jur.,
Law,
s.
and cited cases.
15 Ám.
construed.
Criminal
*4
First,
is at least twofold:
“The
of an indictment
purpose
the
charged
investigation
clear the offense
so that
to make
offense,
may
that
may
proper procedure
confined to that
be
invoked; second,
followed,
put
law
and applicable
be
him
so as to enable
to make
on reasonable notice
served,
functions of
are
purposes
defense. When these
his
of subor-
are
so
the omission
impaired
the indictment
description
particular
this case more
dinate details —in
in-
judicial
abruption
to necessitate an
injury
—as
which,
proceed,
ques-
if it is allowed to
in
vestigation
rights
made clear and the
condition
be
tioned
standards.”
legal
application
accused protected
kill, and
what is now
prisonment
4. The statute enacted as
inflicts
...
G.S.
for a
14*32{a)),
period
injury
provided:
not less
not resulting
Chapter 101,
“Any person
than
four
in
Public Laws of
death,
months nor more than
who
shall be
assaults another with a
1919,
first codified as
of a
felony
years."
and
C.S.
shall
(the
punished by
with intent to
precursor
im-
in
Although Gregory
pains
expressly
Court
took
to avoid
Battle and
overruling
attempted
distinguish
ground
it on the
dealt with a common law offense while
involved a
Gregory
crime,5
statutory
it cast serious doubt on the soundness of the
rule in Battle even as
to common law
applied
offenses.
seriously
The Porter rule was
eroded
v. Randolph,
228,
(1947),
Statute 14-32 in which the indictment described the “a wit, a certain weapon, knife.” Without mentioning Porter, held the allegation concerning weapon to be sufficient without further description weapon. Court, however, in relied on Porter in part 507,
Wiggs,
N.C.
Adhering indictment which uses the sufficient, language ordinarily of the statute v. Randolph, supra; Gregory, supra,6 following reasoning we could limit the Gregory, holding Porter to warrants charg- without further separate injury. cumstances theretofore considered determining significant law. In the crimes should be 5. “As we have In our an present distinct *5 expression opinion, elaboration, jurisdiction pursued. instance, stated, statutory the statement as ‘serious of the court in the first the effect of the we offense which are the fact becomes matter of feel merely injury’ in the as an the more reasonable rules be further aggravation instance, Act—section incorporated explained it is the assault proof upon served questionable as essentials to the crime a number of cir- assault — pertaining Michie’s any the trial. inflicted serious amongst useful whether the insistence that so to indictments for Code, Except purpose, them supra— as a convenience in injury the fact even at common is to create a is sufficient of serious statutory 223 N.C. “As a general [27] rule, an 2d at indictment is sufficient when 143. charges the offense in the language of the statute.” 6. For a discussion of the general rule and several exceptions thereto see Note, 35 N.C. L. Rev. [118] (1956). COURT IN THE SUPREME 638 Palmer only rationale Gregory apply law assaults common ing would approach 14-32. This Statute General indictments under would be dif- Porter, The result and Wiggs. Randolph, reconcile to the respect requirements ferent pleading .assaults law misdemeanor common charging warrants element in statutory felony and indictments hand on the one could, follow alternatively, continue to We the other. assaults on statutory offenses law its rule to common and apply Porter course, then, ra- holdings and ignore would alike. We and Randolph. Gregory tionales of for the an undue concern was the result of Porter Whether limine, determine, jurisdiction ability to
trial court’s of the cases, requirements pleading of the meticulous law, to declare that simply course is the better we think common arose, it is out the time the case validity Porter had at whatever and should be criminal pleading notions of with modern step overruled. that an to the rule already alluded
[1, We have 2] sufficient generally the statute is language in the couched indict true that generally It is also statutory offense. charge facts con the ultimate allege need and warrants ments Evidentiary criminal offense. element each stituting 261, 271, Beach, 283 N.C. alleged. not be matters need 328-29, Greer, (1973); 77 221 196 S.E. 2d Information, (1953); Indictments and 42 920 C.J.S. S.E. 2d 15A-924(a)(5), the time in effect at Statute 115 General § thereto,7 provides applicable was returned and this indictment and concise plain contain ... must pleading “A criminal part: which, allegations in each count factual statement nature, every element of supporting asserts facts evidentiary with suf thereof defendant’s commission and the criminal offense ... of con clearly the defendant apprise ficient precision supplied.) (Emphasis of the accusation.” subject which is the duct they if sufficient generally indictment are and bills of Warrants manner intelligible, explicit a plain, “in the offense to judg- to proceed to enable the court sufficient with averments September Session tive on proceedings plicable While July 1, Laws. all criminal 1975 Session pending Section 1974.” warrant on proceedings that date to the extent of Person in this case was executed Chapter Superior begun on and after provides: Court. practicable, G.S. 15A-924 "This on that date and each act becomes effective on except June is a codification of Section provision indictment- was returned of this act which becomes Chapter July applicable 1, 1975, to criminal and is at the effec- ap- *6 639 ment and bar a for offense. subsequent prosecution the same G.S. Arnold, 751, 755, 15-153.”8 v. 285 2d State N.C. 208 S.E. 648 (1974). Greer, We said in 238 77 S.E. N.C. at 2d supra, (and (1953), at an that indictment the true same holds for war- rants) allege lucidly accurately “must the and all essential elements of offense the endeavored to be order charged” that him,9 may duly against informed the charges trial, protected from double and able for jeopardy, to and prepare that the court be able an pronounce to sentence appropriate conviction or plea. See also State v. Gregory, supra, N.C.
Specifically, with regard to an indictment or warrant charg- ing deadly the offense of assault said in we Wiggs, S.E. 2d supra, at 89: requisites
“The of an indictment or warrant criminal a deadly offense assault with are set weapon forth C.J.S., Battery Assault and ‘In 110g(2), as follows: an § a deadly for assault with or dangerous weapon, or dangerous deadly weapon character of the must be averred, statute, either in the or language state- ment of facts from which can it necessarily the court see that however, only necessary, was such. It describe to and charge weapon to be or where dangerous it is a not, termini, ordinary which vi weapon name of does ex character; import its or is a dangerous if it ordinary name of imports dangerous its or character, termini, vi ex it is sufficient to describe name, it was a or alleging dangerous that ” weapon.’ [3] Guided foregoing principles, we hold it is suffi cient for indictments or seeking warrants to crime in (1) which one of the elements is use of a deadly weapon name the and either to state expressly 8. — G.S. 15-153 provides: quashed informality. Every proceeding by “Bill or warrant not criminal impeachment purposes warrant, presses quashed, indictment, information, or is sufficient form for all intents if it ex- plain, explicit manner; the defendant in a the same shall not be charge against intelligible, stayed, by any informality proceed pro- refinement, if in nor the thereon reason of or the bill or appears judgment.” ceeding, sufficient matter enable the court to
9. See N.C. Constitution, I, Article § IN THE SUPREME COURT v. Palmer such facts as “deadly weapon” allege was a used necessarily demonstrate would *7 is, course, allegation can prove Whether state
weapon. until trial. which cannot be determined a of evidence question [4] port The indictment a verdict of guilty in of assault case was, therefore, with a sufficient to sup and a thereon. based II [5] defendant While also assigns as error Appeals the failure of the did not reach this question, trial to assault. verdict possible submit to the in this assignment. We find merit following: to show On June evidence tends
The state’s in the middle of Lamar Street parked car was 1975 defendant’s a water truck on while defendant talked someone Roxboro was driving Grover A. Whitfield at the side the street. parked by the two way and found his blocked on Lamar Street home car, about his and after five He asked defendant to move vehicles. to Im- Whitfield then complied. proceeded minutes defendant station, at the stopped Station. As Whitfield perial Service his him out of car. attempted and force appeared began fighting. out of car and two men got Whitfield into the service station building, Whitfield pursued Defendant began and it at him. heavy swinging picked up large, as follows: described this attack Mr. Palmer inside station when came “I was the service him, he thinking I the chair back towards would pushed other the service station out. went out the door of go back I was out me. the service station and he came behind inside a few just for seconds. Palmer hit me on the arm or five different
“Mr. four things I received several knots on times with the stick. arms, any did my but not receive treatment medical my seriously injured.” arm was My arms. injuries attendants, started Lacy Compton, service station One of the the idea defendant threatened but abandoned when police call the attendant, Gary Compton, pointed stick. him with the Another FALL TERM 1977 gun the air and pulled trigger, but it failed to fire. Then defendant left the station.
Ten or twelve minutes later defendant returned to the serv- ice station with his They brother. both attacked Whitfield as he car, got out of his him to knocking ground him stomping repeatedly the face. The stick was not used during this second fight. As a result of the second fight Whitfield lost ten of his teeth and his severely face was bruised. Defendant and his briefly brother left and then just returned police arrived. Defendant’s evidence presented somewhat different picture defendant, incident: As Whitfield drove he cursed the who then followed to the him service station to demand an ex- planation. They began fight and Whitfield ran into station *8 stick, building. Defendant picked up but he hit neither Whit- field nor threatened the attendant with it. As defendant started to leave Whitfield cursed him again, and when he came back into the building Whitfield hit him in the side of his head with the stick so that he later required seven stitches. About this time Gary misfired Compton gun while he was it at pointing de- badly, Bleeding left in his car. He started to fendant. but go hospital changed his mind and returned to the serv- time, ice station. While he and Whitfield were fighting the second defendant’s brother arrived and managed to extricate defendant fray. from At no time did defendant ever hit Whitfield with heavy stick. The trial judge submitted six alternative verdicts: guilty of deadly a weapon assault with with intent to kill inflicting serious kill;10 injury; guilty deadly of assault with a with intent to with a guilty deadly of assault weapon inflicting injury,11 serious of assault with a weapon; guilty of assault inflicting injury;12 guilty. or not each On of these possible verdicts judge jury’s the trial limited the consideration on the assault ele- ment itself to the assault with the stick. He did not permit the the second jury beating.13 to consider by
10. felony punishable imprisonment years, fine, G.S. 14-32{c). A a for not more than ten or both. felony imprisonment punishable years, G.S. fine, 14-32(b). A a 11. not more than ten or both. punishable imprisonment years, G.S. fine, 14-33(b)(l). 12. A misdemeanor for not more than 2 or both. appear record, The trial also submitted written issues to the in the with together intentionally Grover thereto, "1st the answers him with a as follows: Issue: Did defendant striking Was stick? 3rd deadly weapon? used, Yes. 2d Issue: Answer: as Answer: Yes. Issue: IN THE SUPREME COURT v. Palmer consideration of jury’s limitation on the this
It is clear understanding judge’s the case was due to drawn seems to refer The bill as in the bill of indictment.14 as laid According with a stick.15 made one assault —one evidence, however, assaults. The were two distinct there state’s or twelve the stick. Some ten first one was committed The in- assault without the stick. there another minutes later separately these assaults alleged have dictment should 15A-924, ap- Statute addressed to each. General count separate indictment,16 must pleading “A criminal provides: plicable to charged, offense addressed to each ... count separate contain by reference in incorporated in one but count allegations another count.” tried, theory which this case was whether upon
Under the as an alternative ver- have submitted assault should been simple se, was a weapon per whether stick dict depends upon was, assault need been law. If it not have or a matter of not, given should have been this ad- If it was submitted. ditional alternative. not, evidence, under this that the stick
We hold “any of law. A instrument as a matter harm, bodily under the likely great death produce which is the weapon its use .... circumstances of use, manner of its and the con- more upon sometimes depends assaulted, than the intrinsic character of person dition of the *9 Whitfield? Grover specific intent to kill Answer: No. 4th Issue: Did defend- at the time Did defendant have injury? thereby Answer: No.” serious inflict on ant question judge colloquy jury While of the trial it returned to ask and the following was deliberating the your your FOREMAN: you question? “COURT: issues, sir, As outlined in four we will state All right, occurred: have arrived at the fourth field serious sider thereby Whit- question was as stated . . . did the defendant inflict on issue and the question Our injury? or are we to con- Are we to consider the entire the second fight, fight is: you, may stick? COURT: only Thank sir. You be seated. Mr. Tolin which occurred with the the fight here? COURT: you up BENCH.) may (DISCUSSION AT THE Mr. Foreman and members of Waters, I see Mr. intentionally. jury, The bill of indictment in this case alleges in that fashion the with a was drawn the issue may, question deadly weapon, therefore, in- consider on the of whether serious wit: a stick. You to by injury jury injury inflicted with the use of a stick. An inflicted, whether the defendant inflicted was prove State you burden, any by course, to not to consider. The of is the the evidence are other means under injury by beyond a stick on the defendant inflicted serious the use of a reasonable doubt evidence your may Whitfield. deliberation.” retire and resume You See supra. 14. n. by by injury the state’s the inflicted the second assault as is revealed does describe 15. The indictment separate question Whether two assaults is as drawn could be construed the indictment
evidence.
not now before us.
Obviously
erred,
it. If he
the error was
defendant’s favor.
did not so construe
16.
supra.
See
7,n.
Smith,
itself.”
weapon
the
187 N.C.
(1924). Where there is no in the conflict evidence both regarding use, the nature of the weapon and the manner of its the ap- plicable its principles determining deadly character are well Smith, stated id.: deadly
“Where the alleged
weapon and
manner
the
of its
conclusion,
use are of such
to
character as
admit of but one
the
as to
question
or not
it is
within
whether.
the
law,
foregoing definition is one of
and the
must
take
of
responsibility
declaring.
so
. .
may
.
where it
But
or
likely
results,
not be
to
fatal
produce
to
according
use,
manner of its
or the
part
body
the blow
aimed,
is
alleged
its
deadly character
is
of fact
one
to be
(Citation omitted.)17
determined
by
jury.”
If there is a
conflict
the evidence regarding either the nature
use,
the weapon
or the manner of its
some
the evidence
tending to show that the
or as
weapon used
used would
likely
not
produce
bodily
death or great
harm and other evidence tending to
must,
course,
contrary,
jury
show
resolve the conflict.
In
evidentiary
this case there is no
conflict regarding the
nature of the
used
nor in
manner
its
use against
Defendant’s
Whitfield.
evidence was that he picked up the stick
did not use it at all.
if
but
Nevertheless
the state’s version of its
was accepted
jury
use
we
persons
believe reasonable
could
draw different conclusions
regarding
character. The
be,
of its
question
character must
therefore
as in fact it
case,
in this
jury’s
left
determination.
Had the
determined
stick was a deadly
defendant,
jury’s
because of the
determination
favor,
aggravation
other elements of
in defendant’s
could have
only of
been convicted
assault.
option
This
not given
case,
therefore,
It was raised
jury.
the evidence. The
falls within the
that a
principle
entitled
have all
lesser
of offenses
degrees
supported
the evidence submitted to
State
the
(1956)
v.
(heavy pine
(leather
Illustrative
Archbell,
2d
belt with
(1939) (brick
“stub” which defendant
139 N.C.
cases
metal buckle used
declaring
537,
rock hurled
to be a
[801]
swung
to inflict severe bruises over
through
to be
so as
question
(heavy
windshield of
fracture
are
leather
as a matter of law are
deceased’s
strap
truck)
Cauley,
used
body
skull).
to beat
of a
Illustrative cases holding
*10
three-year-old
defendant’s
Craton,
v.
Hobbs,
child),
sick,
N.C. 164
frail
and
THE
IN
SUPREME COURT
State
Palmer
v.
Bell,
alternate verdicts. State v.
N.C.
jury
possible
Wrenn,
(1973);
S.E. 2d
v.
committed the is remanded direction in remanded to the Court Division order that Superior defendant a new trial. receive and remanded. Reversed dissenting. SHARP
Chief Justice I of the majority in accord with the decision the in- am in this case is sufficient to verdict support dictment of assault based thereon. majority’s is dissent from decision entitled a new because the court failed to submit the issue of simple trial verdict. possible assault as a correctly in majority opinion
It stated that “there is no is conflict the nature used evidentiary regarding stick, the manner of use.” The which accompanied nor [stick] exhibit, to this Court as is described appeal the case on correctly there as “a hard denominated wooden club.” opinion Dictionary New As defined (1961) Webster’s Third International staff, heavy “a . esp. tapering of wood usu. . . a club as a . . . .” striking weapon hand The stick wielded this precisely. fits definition case my In view this when used as club an able bodied man, se, all per the evidence tends is a supra, “No,” it, issue n. not have If had answered the second submitted see could comported judge’s alone, with the trial This fact rather than the returned a verdict instructions. unduly impelled evidence, it to answer the issue “Yes.” have might *11 Palmer State v. show defendant used it as such. v. Perry, See State 226 N.C. Defendant, testimony, to his according years is 35 old and employed the State Highway Department. “The nature of his duties” are “the of new cutting highways, and different straightening up things.”
At the of the beginning fight, after defendant and Whitfield fisticuffs, had engaged Whitfield went into the filling station. and, inside, Defendant followed picked he the stick. up described events as follows: subsequent I
“When went out he started at me and swinging tried to hit me over the head with it. He tried to hit me on the I head but my threw arms and it I up my blocked off. had big knots on arms. He hit me on the arm with I the stick. hit him in an effort to stop stick, him from me with I hitting the stick. hold caught try- head, him ing keep from me on the hitting but could not get away him. from After he saw that he could not do much to me stick, the defendant in an left automobile.” A short time thereafter defendant returned filling to the sta- stick, tion. This time Whitfield had the and when defendant stuck his head in the service station door Whitfield hit him “in the side of the head with the stick.” As a result of the wound thus in- flicted defendant said that “seven stitches performed were at the County Person Memorial the same Hospital afternoon and [he] inwas a lot of pain from the cut.” offensively by
This
used
either defendant or Whitfield
clearly
That
weapon.
Whitfield was able to protect
his head from the blows which defendant attempted to inflict
him
upon
with the stick and that
the blows
his arms
raised
knots instead of breaking flesh and
change
bones does not
or the assault which defendant made
upon him. Had defendant been attempting to shoot Whitfield with
a gun and Whitfield had deflected the
shot upward
grabbing
armhis
or the
gun,
would have been
nonetheless
Hobbs,
of an
a deadly
assault with
In
weapon.
14,
State v. Small further held that deadly weapon. judge’s The Court of a failure to submit of simple “for the there no evidence not error reason assault.” *12 defendant injury
The serious inflicted course, occurred, when defendant his face. trial stomped however, did being opinion not judge, assault, to consider instructed encompass in which defendant used stick. to affirm the Court. Superior vote OF NORTH v. RONALD EARL SMALL STATE CAROLINA
No. 36 (Filed 1977) December promises by § 75.2— threats 1. Criminal Law confession—no officers —ad- missibility support was that an Evidence sufficient to court’s conclusion in- freely voluntarily custody was made where statement defendant defend- lying ant contended that officers told him he was and one officer offered to in- behalf; any specifically with the in his denied tercede officers such conduct; rights any before the officers read defendant his and he waived them interrogation place; took of the officers told that he could one defendant “buy” he should one of his statements and defendant then told that tell truth; family shortly police when station defendant’s arrived at the family interrogation began, interrogation per- ceased after and defendant’s privately thirty visit him for about mitted to minutes. bloody probable §Bail 3.1— 2. Arrest and warrantless cause — arrest — crime at scene of illegal police person where a Defendant’s arrest was not officer observed bloody morning wearing clothing 200 feet on the murder within beaten, discovered; bloody place where the victim was later the officer a made annual; high from a he and tentative identification of defendant school other of- person proceeded to where he same ficers defendant’s home observed the he morning; approximately he had seen earlier that the same time saw blood clothing person spotted worn he saw him in similar to that when early day; accompany them to hours of the officers asked defendant to police agreed; and he officers then station handcuffed defendant.