State v. Jones

188 S.E.2d 676 (1972)

14 N.C. App. 558

STATE of North Carolina v. Clifton Ray JONES.

No. 7226SC82.

Court of Appeals of North Carolina.

May 24, 1972.

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

Thomas E. Cummings, Charlotte, for defendant appellant.

CAMPBELL, Judge.

The defendant first contends that it was error for the trial court to allow the witness, Robert M. Suggs, to testify. Defendant argues that the testimony amounted to the confession of another party which was induced by expectation of leniency and that the testimony was therefore inadmissible. This argument is without merit.

A confession is defined as an acknowledgment by the accused in a criminal action of his guilt of the crime charged. 23 C.J.S. Criminal Law § 816 (emphasis added). The testimony of Suggs does not fall within this definition. He is not the accused in this action nor is he charged with any crime in this action. He is merely a witness and the fact that his testimony implicates him does not make it a confession within the above-stated rule.

It is well settled that an accomplice is a competent witness. The fact that an accomplice hopes for or expects mitigation of his own punishment does not disqualify him from testifying. 23 C.J.S. Criminal Law § 805. Any objection to the manner in which this testimony was procured was available only to the witness and not to the defendant. State v. Lippard, 223 N.C. 167, 25 S.E.2d 594 (1943), cert. denied, 320 U.S. 749, 64 S. Ct. 52, 88 L. Ed. 445. The trial court properly instructed the jury in considering the testimony of accomplice Suggs. There was no error in allowing the witness Suggs to testify.

The defendant next assigns as error the admission of testimony of a policy officer that threats had been made against the witness Suggs. The testimony was brought out on cross examination in response to questions about Suggs being allowed to see his girl friend at the Law Enforcement Center. The officer testified that this had been done and explained further that it was necessary because Suggs had been placed in isolation for his own protection *678 after threats had been made against him. This assignment of error is without merit.

The defendant inquired repeatedly as to privileges granted Suggs while he was in jail. The police officer was merely explaining the reasons for any such privileges. ". . . As a general rule a witness should be permitted to explain facts in evidence from which a wrong inference or conclusion is likely to be drawn without an explanation, . . ." 98 C.J.S. Witnesses § 318 b, p. 17. See also 58 Am.Jur., Witnesses, § 670. There was no error in allowing the witness to explain his answer in this case.

The defendant's final assignment of error is to questions by the Solicitor as to any other indictments against the defendant.

The defendant relies on the case of State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), in which the Supreme Court of North Carolina overruled a long line of precedent and held that a defendant could no longer be impeached by questions as to indictments he might be under other than the one on which he was being tried. Under the rule in Williams, supra, the questions propounded by the Solicitor to the defendant would not be proper today.

The judgments in this case were entered on 18 June 1971. The Williams decision was handed down on 15 December 1971. The Supreme Court has since indicated that the rule in Williams applies only to trials which occurred after the decision in Williams. State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). In Gainey a conviction was upheld where the Solicitor had asked defendant about a previous arrest.

"The trial of this case occurred before the decision in Williams. Although no longer permissible, the solicitor's questions with reference to defendant's arrest were then competent. . . ." State v. Gainey, supra.

The trial of this case occurred before the Williams decision and the questions of the Solicitor were therefore competent.

In the trial below we find no error.

Affirmed.

BRITT and GRAHAM, JJ., concur.