196 S.E.2d 532 | N.C. Ct. App. | 1973
STATE of North Carolina
v.
Bobby STITT.
Court of Appeals of North Carolina.
*534 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Parks H. Icenhour, for the State.
Hamel & Cannon, P. A., by William F. Hamel, Charlotte, for defendant appellant.
MORRIS, Judge.
The record on appeal was not docketed within the time provided by Rule 5, Rules of Practice in the Court of Appeals of North Carolina, and the appeal is subject to dismissal. We have, however, elected to treat the appeal as a petition for a writ of certiorari. We have allowed the petition and will consider the case on its merits.
No reason or argument is presented or authority cited in defendant's brief with respect to his assignments of error Nos. 1, 2, 3 and 13, and such assignments of error are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.
Defendant, by his assignment of error No. 14, contends that the trial court erred in sentencing him to three five-year terms running consecutively. He argues that because the three charges arose out of the same facts and circumstances, he should be charged with one offense, not three, and that the action of the trial court placed him in double jeopardy by the imposition of multiple punishments for the same crime. We do not agree.
Defendant was charged in three indictments with three separate offenses: (1) the armed robbery of Edward Bowers; (2) the armed robbery of Roland Harris; and (3) the armed robbery of John Dietz. He was tried on all three charges in one trial and was clearly not subjected to double jeopardy for the same offense. It is well settled in North Carolina that where cases are consolidated for trial and there is a conviction or plea of guilty on several counts, the trial court may enter a judgment on each count and have the judgments run concurrently or consecutively as it may direct. State v. Austin, 241 N.C. 548, 85 S.E.2d 924 (1955).
Defendant next contends that the trial court erred in allowing improper cross-examination by the State of both the defendant and the codefendants as to matters relating to prior criminal misconduct. All the questions asked of the codefendants were within the proper scope of cross-examination. However, assuming arguendo that they were improper, we fail to see how any prejudice could be imputed to defendant Stitt, especially in view of the fact that the jury failed to return a verdict as to the codefendants. Furthermore, the only objection interposed during the entire cross-examination of defendant Stitt by his counsel was to the question of whether he was a deserter from the U.S. Army, and this objection was promptly sustained by the trial court with an instruction to the *535 jury to disregard such question. This assignment of error is overruled.
Defendant also contends that the trial court erred in refusing to suppress the identification evidence given by the three prosecuting witnesses and in allowing the case to go to the jury, because that evidence was conflicting and confusing. Defendant made no timely objection and request for a voir dire and the fact that the testimony as to the identity of a defendant is not positive does not render that testimony incompetent, but only goes to its weight. 2 Strong, N.C. Index 2d, Criminal Law, § 66; 1 Stansbury's N.C. Evidence, Brandis Revision, § 129. Also contradictions and discrepancies even in the State's evidence are for the jury to resolve and taking the evidence in the light most favorable to the State and giving it the benefit of every reasonable inference, it was proper for the trial court to submit the case to the jury. State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968).
Finally we examine defendant's contention that the trial court erred in failing to order a mistrial and in entering judgments as to defendant Stitt in light of the fact that the jury failed to reach a verdict as to the other defendants upon basically the same evidence at trial. Each of the prosecuting witnesses testified as to the presence of each of the three defendants in the store. Each was subjected to a rigorous cross-examination revealing varying degrees of positiveness on their part as to the identity of the defendants. However, even though the evidence was basically the same as to each defendant, most modern authorities agree that criminal verdicts as between two or more defendants tried together need not demonstrate rational consistency. Annot. 22 A.L.R. 3d 717, 723 (1968). It has similarly been held that consistency between verdicts on several counts of a bill of indictment is not necessary, and a conviction will be upheld even though it is not rationally compatible with an acquittal on other counts in the same bill. State v. Davis, 214 N.C. 787, 1 S.E.2d 104 (1939); State v. Lundquist, 14 N.C.App. 361, 188 S.E.2d 686 (1972). While the jury would have been fully justified in finding all the defendants guilty upon the evidence in this case, their failure to return a verdict as to the codefendants does not vitiate the verdict of guilty returned as to defendant Stitt.
No error.
BRITT and PARKER, JJ., concur.
