State v. Dunlap

191 S.E.2d 385 (1972)

16 N.C. App. 176

STATE of North Carolina v. Thomas Lee DUNLAP.

No. 7220SC694.

Court of Appeals of North Carolina.

September 20, 1972.

*386 Atty. Gen. Robert Morgan by Associate Atty. Gen., Walter E. Ricks, III for the State, appellee.

Joseph G. Davis, Jr., Rockingham, for defendant appellant.

VAUGHN, Judge.

Defendant's court-appointed counsel brings forward four assignments of error. In his first assignment of error, defendant contends that hearsay evidence was admitted to his prejudice. Lt. Wise testified that defendant's automobile bore license plate No. AK 4674 and that prior to seeing the automobile and tag he was familiar with the number. He, without objection, was asked why he was familiar with the number. The witness responded that the manager of the laundry had given him the number. Defendant voiced a general objection which was overruled. The laundry manager was tendered as a witness for the State but defendant declined to question him. Defendant failed to move to strike the answer. Moreover, the same witness immediately thereafter, without objection, testified to the same fact. We hold that no prejudicial error is shown. State v. Battle, 267 N.C. 513, 148 S.E.2d 599. State v. Tyson, 242 N.C. 574, 89 S.E.2d 138.

Defendant's next contention is that there was a fatal variance between the bill of indictment and the evidence as to the type of weapon used. This assignment of error lacks merit. The indictment charged defendant with robbery with the use of firearms, to wit a shotgun. All the evidence tended to show a robbery with the use of a firearm, to wit a "gun." There is no variance between the allegation and the proof and, if the variance argued by defendant did exist, it would not constitute a material variance.

Defendant next argues that it was error to admit the rebuttal testimony of Lt. Wise without a voir dire hearing to determine whether defendant voluntarily made the statements while in the Lieutenant's custody. The record discloses that defendant made no objection to either the question or Lt. Wise's answer which related defendant's prior inconsistent statement. Furthermore, the credibility of a defendant who testifies on his own behalf may be impeached by use of his earlier conflicting statements even if such statements were made under conditions rendering them inadmissible for purposes of establishing elements of the offense against the defendant. *387 Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1; State v. Bryant, 280 N.C. 551, 187 S.E.2d 111.

The defendant's fourth assignment of error, that the court failed to instruct the jury that it might return a verdict of guilty of common law robbery, is likewise without merit. All the evidence tends to show robbery with firearms. State v. Parker, 262 N.C. 679, 138 S.E.2d 496.

No error.

PARKER and GRAHAM, JJ., concur.