State v. Culp

169 S.E.2d 10 (1969)

5 N.C. App. 625

STATE of North Carolina v. Harvey CULP.

No. 6926SC32.

Court of Appeals of North Carolina.

August 13, 1969.

Certiorari Denied October 7, 1969.

*11 Atty. Gen. Robert Morgan and Staff Atty. Sidney S. Eagles, Jr., Raleigh, for the State.

George S. Daly, Jr., Charlotte, for defendant appellant.

FRANK M. PARKER, Judge.

Appellant assigns as error the court's references to defendant in its charge to the jury as "Harvey Culp, alias James William Hill," the names used to designate the defendant in the indictment. Description of the accused in a bill of indictment by whatever alias names he may have been known to use, if done in good faith, is proper and may even afford protection to a defendant if called upon to prove former jeopardy. It is true that the use of aliases may at some times be associated in the public mind with the so-called "criminal" class. For that reason some jurisdictions have held that the court's reference to an accused during the course of a trial by an unproved alias name may under certain circumstances constitute prejudicial error. See: Commonwealth v. Torrealba, 316 Mass. 24, 54 N.E.2d 939; People v. Klukofsky, 201 Misc. 457, 114 N.Y.S.2d 679; State v. Smith, 55 Wash. 2d 482, 348 P.2d 417; United States v. Monroe, 2 Cir., 164 F.2d 471; United States v. Solowitz, 7 Cir., 99 F.2d 714; D'Allessandro v. United States, 3 Cir., 90 F.2d 640. However, under the circumstances of this case we do not believe the defendant was prejudiced in any way by the court's reference to the alias. Testimony at the trial raised no question as to the identity of the defendant as the person who committed the offense charged. All of the testimony was to the effect that he was arrested while actually in the course of perpetrating the crime. The character and credibility of defendant were in no way placed in question. The only problem for the jury was whether they should believe the State's witnesses. In any event it is incumbent upon appellant to show not only error but that the error was prejudicial. "An error cannot be regarded as prejudicial to a substantial right of a litigant unless there is a reasonable probability that the result of the trial might have been materially more favorable to him if the error had not occurred." Call *12 v. Stroud, 232 N.C. 478, 479, 61 S.E.2d 342, 343.

Appellant next assigns as error that he was prejudiced in that his trial counsel, in the presence of the jury, questioned him as to whether he wished to take the witness stand, and at the request of defendant's counsel this question and defendant's answer were repeated into the record by the presiding judge. While the better procedure would have been to have this statement placed in the record outside the hearing of the jury, any possible prejudicial effect to defendant was cured when the court, in its charge to the jury, properly and fully instructed the jury that they should not consider the fact that the defendant did not testify to his prejudice at any stage of the proceedings. State v. Lewis, 256 N.C. 430, 124 S.E.2d 115.

Appellant assigns as error that portion of the court's charge to the jury in which, while reading the bill of indictment, the court read the third count therein which charged defendant with the crime of receiving stolen property. Reading this count was, in the first instance, an obvious inadvertence on the part of the trial judge. Any possible prejudicial effect to defendant was removed when the court, immediately after reading the third count, clearly instructed the jury that they should not consider any portion of the bill of indictment which had to do with receiving stolen goods. The remaining assignments of error directed to the charge have been reviewed and have been found to be without merit.

Appellant's final assignment of error is that the punishment imposed by the court, which was two consecutive ten-year terms, was "cruel and unusual" within the meaning of Article I, § 14, of the North Carolina Constitution. In this case, the sentences imposed were within valid statutory limits and cannot be considered cruel and unusual punishment in a constitutional sense. State v. Robinson, 271 N.C. 448, 156 S.E.2d 854; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216; State v. Stansbury, 230 N.C. 589, 55 S.E.2d 185.

No error.

MALLARD, C. J., and BRITT, J., concur.