186 S.E.2d 595 | N.C. Ct. App. | 1972
STATE of North Carolina
v.
John Denny RUSH, Jr.
Court of Appeals of North Carolina.
*598 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Charles M. Hensey, for the State.
D. Lamar Dowda, Asst. Public Defender, for respondent appellant.
MORRIS, Judge.
Appellant's first assignment of error alleging that G.S. § 7A-278 is unconstitutional was not brought forward and argued in his brief and is thus deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.
Appellant questions the finding by the court that his statement to the police officer was voluntarily given and admissible into evidence. Though juvenile proceedings in this State are not criminal prosecutions and a finding of delinquency in a juvenile hearing is not synonymous with the conviction of a crime, a juvenile is entitled to certain constitutional safeguards and fairness. In re Jones, 11 N.C. App. 437, 181 S.E.2d 162 (1971). For instance, juvenile proceedings must be regarded as "criminal" for Fifth Amendment purposes of the privilege against self-incrimination. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), affirmed 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971). The State's evidence tends to show that the police officer advised appellant prior to questioning him that his constitutional rights included ". . . a right to remain silent and anything he said could and would be used against him in a court of law." A written waiver of his constitutional rights was introduced into evidence. The trial court then conducted a voir dire examination to determine whether appellant freely, voluntarily and understandingly confessed. Appellant testified on voir dire that he was called to the principal's office where the officer was identified and "In the office he told me anything I said could be used against me." Appellant then testified as follows:
"Q. Say what you recall Officer Smithey having said to you?
A. He told me I had the right to remain silent because anything that I said could be used against me, and if I wanted a lawyer the courtif my father could not afford me one the lawyerI mean the court would give me one.
Q. What else?
A. He added some more things but I can't recall.
Q. Did he ask you to read this form?
A. No.
Q. Did he read this paragraph to you, `I have read the above statements of my rights'?
A. Yes.
Q. Did you tell him you understood what that meant?
A. Yes.
Q. Did you, in fact, understand that you were entitled to have someone like me or a lawyer there present when you were talking?
A. Yes.
Q. You did not understand that it was for the trial of the case as opposed to that interrogation there?
A. I didn't understand all of that, but I kind of got what he was talking about.
Q. What do you mean you kind of got, what did you understand it to mean?
A. I understand parts of what he was saying about anything that I said could be used against me, and if my father couldn't afford me a lawyer the court would appoint me one."
During this same voir dire examination the appellant testified for a third time that he understood he had a right to remain silent *599 and the court would appoint a lawyer for him if he could not afford one. The court denied appellant's motion to exclude the confession and entered a finding that appellant voluntarily and understandingly confessed after having been fully advised of his constitutional rights. Though both State and appellant offered evidence on voir dire, there was no real conflict in the testimony as to the voluntariness of the confession. The trial court's findings are adequately supported by competent evidence and thus are conclusive on appeal. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). Considering the totality of the circumstances, neither the appellant's tender age nor the place of the interrogation rendered the conditions so coercive as to make the confession inadmissible. In re Ingram, 8 N.C.App. 266, 174 S.E.2d 89 (1970); see also 87 A.L.R. 2d 624; 47 Am. Jur.2d, Juvenile Courts and Delinquent and Dependent Children, § 50, p. 1024.
Appellant contends it was error for the court repeatedly to propound questions to various witnesses throughout this juvenile proceeding in violation of G.S. § 1-180. This juvenile hearing to determine delinquency was heard by a judge without a jury and G.S. § 1-180 does not apply where no jury is present. State v. Butcher, 10 N.C.App. 93, 177 S.E.2d 924 (1970). The purpose of Article 23 as set out in G. S. § 7A-277 is "to provide procedures and resources for children under the age of sixteen years which are different in purpose and philosophy from the procedures applicable to criminal cases involving adults." See In re Whichard, 8 N.C.App. 154, 174 S.E.2d 281, appeal dismissed 276 N.C. 727 (1970). G.S. § 7A-285 provides that "The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278(1) through (5) which have been alleged to exist,. . ." We believe the informal procedure contemplated by the statute allows the questioning of witnesses by the trial judge to elicit relevant testimony and to aid in arriving at the truth. The record discloses complete fairness on the part of the court in asking the witnesses questions, and we find no bias on the part of the trial judge. Since there was no prejudicial error shown, appellant's assignment of error is overruled.
By appellant's next assignments of error, he contends the court erred when it admitted into evidence a knife and statements related thereto, because the petition made no allegation that a weapon was used. Appellant cites no authority for the proposition and concedes that whether a child commits common law robbery or armed robbery is of no consequence in a juvenile hearing since a child may be declared a delinquent for committing "any criminal offense under State law". G.S. § 7A-278(2). The gist of the offense of common law robbery is the taking by intimidation or violence. State v. Stewart, 255 N.C. 571, 122 S.E.2d 355 (1961). Weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime. State v. Russ, 2 N.C.App. 377, 163 S.E.2d 84 (1968); State v. Ashford, 7 N.C.App. 320, 172 S.E.2d 83 (1970), cert. denied 276 N.C. 498. Evidence of a knife is competent for the purpose of proving intimidation or the putting in fear. We find no prejudicial error, and the assignment of error is overruled.
Appellant's next assignment of error questions the sufficiency of the evidence to withstand his motion to dismiss the petition as of nonsuit. Appellant contends that there was no evidence that the victim, Conrad Huffman, was put in fear and, therefore, an essential element of the offense of common law robbery is missing. State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595 (1964).
". . . `No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, *600 such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.' (Citations omitted.)" State v. Norris, 264 N.C. 470, 473, 141 S.E.2d 869, 872 (1965).
6 Strong, N.C. Index 2d, Robbery, §§ 1-5, pp. 678-687.
"Fear will be presumed if there are just grounds for it." State v. Keyes, 8 N.C. App. 677, 679, 175 S.E.2d 357, 359, cert. denied 277 N.C. 116 (1970).
There is also plenary evidence to show a felonious intent on appellant's part permanently to deprive Conrad Huffman of his money and to convert it to his own use. State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965); State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966). Clearly since there was sufficient evidence to convict appellant of the crime alleged in the petition, then there was sufficient evidence to permit a finding that appellant is a delinquent child under G.S. § 7A-278(2) and appellant's motion to dismiss was properly denied. In re Roberts, 8 N.C.App. 513, 174 S.E.2d 667 (1970); In re Alexander, 8 N.C.App. 517, 174 S.E.2d 664 (1970). Similarly the court did not err in failing to set the judgment aside.
Appellant also argues that the petition itself was insufficient to support the court's order and, therefore, the court erred in failing to arrest judgment. We disagree. The petition here charging "him in bodily fear and danger of his life did put" sufficiently alleged the gist of the offense without including the word "violence". State v. Stewart, supra; State v. Lawrence, supra. The petition adequately charged a criminal offense, and we find no fatal defect on the face of the record.
Appellant's assignment of error No. 10 questions what evidence a court may consider concerning the needs of the child during the disposition part of the hearing and his assignment of error No. 11 questions whether the court may immediately proceed to disposition following an adjudication. In applying the statutory language of G.S. § 7A-285, we find no error.
Finally appellant contends that the court erred in committing him to the temporary custody of the North Carolina Board of Juvenile Corrections without the privilege of bond pending disposition of his case on appeal. This court has specifically determined this issue previously in In re Martin, 9 N.C.App. 576, 176 S.E.2d 849 (1970), and the assignment of error is overruled.
Unfortunate as the circumstances of this case may be, the record fails to show any reversible error. The juvenile appellant in this case was afforded every constitutional safeguard required at every stage of the proceedings.
Affirmed.
MALLARD, C. J., and PARKER, J., concur.
