State v. Ayers

181 S.E.2d 250 (1971)

11 N.C. App. 333

STATE of North Carolina v. James Marion AYERS.

No. 7117SC283.

Court of Appeals of North Carolina.

May 26, 1971.

*251 Atty. Gen. Robert Morgan by Staff Atty. Burley B. Mitchell, Jr., Raleigh, for the State.

Vernon E. Cardwell and Darrell F. Holmes, Jr., Chicago, Ill., for defendant appellant.

CAMPBELL, Judge.

Defendant's first assignment of error is directed at the admission into evidence of testimony concerning items found in the car that were not related to the *252 charge of possession of morphine. Defendant contends that the evidence offered concerning cameras, watches and movie projectors found in the trunk of the car was offered only to prejudice the defendant and bore no relationship to the crimes charged. We do not agree. Defendant was charged with possession of morphine and with possession of burglary tools. While he was acquitted of the latter charge and it is not now before this Court, this evidence concerning the items found in the car was properly admissible in evidence as relevant to the charge of possession of burglary tools. Every circumstance calculated to throw light upon the supposed crime is admissible and the weight of such evidence is for the jury. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965). Although defendant would have been entitled to an instruction limiting the introduction of such evidence, he did not request such an instruction. Where evidence is competent for some purposes, but not for all, an exception to the admission of such evidence for general purposes will not be sustained unless appellant, at the time of the admission of the evidence, asks that its purpose be restricted. State v. Gentry, 228 N.C. 643, 46 S.E.2d 863 (1948); State v. Walker, 226 N.C. 458, 38 S.E.2d 531 (1946).

Defendant's second, third, and fourth assignments of error all relate to evidence concerning the pistol that was found in the car. This evidence also relates to the charge of possession of burglary tools and was competent for that purpose. As no request to limit the admission of the testimony concerning the pistol for that purpose was made, these assignments of error are overruled.

Defendant next assigns as error the denial of his motion to suppress the evidence obtained through the search of his automobile. The search of the automobile was made without a search warrant but, under the facts of this case, we hold that no warrant was necessary. A suppression hearing had been held to determine the admissibility of the evidence. There, Officer Parker of the State Highway Patrol and Sergeant Moore of the Reidsville Police Department testified, and the judge found as a fact that the defendant freely and knowingly consented to the search of the automobile by Officer Parker.

But the consent of the defendant was not a prerequisite to a valid search. The search would have been valid and the evidence obtained as a result of the search admissible even if the defendant had not consented. Officer Parker stopped defendant's car after being told by two Danville, Virginia, police officers that defendant's car contained alcoholic beverages, narcotics, and a pistol. This information was given to the Danville officers by an informant who was known to be reliable. Thus, Officer Parker had probable cause to believe the automobile was carrying contraband. The Supreme Court of the United States has ruled that a search warrant is unnecessary where there is probable cause to search an automobile stopped on the highway. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925).

Defendant also assigns as error the action of the trial judge in allowing the solicitor to ask certain leading questions of R. K. Bulla, the State Bureau of Investigation agent who assisted Officer Parker. Defendant contends that it was error to allow the solicitor to ask leading questions to validate a Miranda warning. This occurred during a voir dire examination. The allowance of leading questions is a matter entirely within the discretion of the trial judge, and his rulings will not be disturbed on appeal, in the absence of abuse of discretion. State v. Patton, 5 N. C.App. 164, 167 S.E.2d 821 (1969); State v. Fowler, 1 N.C.App. 438, 161 S.E.2d 753 (1968). No abuse of discretion was shown in the record.

*253 Defendant next assigns as error the giving of additional instructions by the trial judge after a request from the jury. Defendant contends that the trial judge erred when, after receiving a request for additional instructions as to the word "wilfully", he also instructed on actual and constructive possession. We find no merit in this contention. It is within the discretion of the trial judge as to how much of a charge to give the jury. As the entire charge was not set out in the record, we are unable to determine the extent to which the jury had already been charged on actual and constructive possession. From the record, we find no abuse of discretion.

We have carefully reviewed defendant's other assignments of error and find them to be without merit. Defendant had a fair trial, free from prejudicial error.

No error.

BRITT and GRAHAM, JJ., concur.