State v. Harvey

217 S.E.2d 88 (1975)

26 N.C. App. 716

STATE of North Carolina v. Bruce Alvin HARVEY and Roland Henry, also known as Lee Nelson.

No. 757SC323.

Court of Appeals of North Carolina.

August 6, 1975.

*90 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Howard A. Knox, Jr., Rocky Mount, for the defendants.

CLARK, Judge.

The State called Mackey Spruill as a witness; and he testified over defendants' objection that on 23 or 24 September 1974, he was fixing a flat tire on his car near Rocky Mount when the two defendants drove up in a 1968 or 1969 green car with New Jersey tags. One of the two defendants held a pistol on Spruill while they robbed him. Later, when the defendants were arrested, Spruill's driver's license was found in their possession. Spruill identified both defendants in court as the same persons using the car.

The defendants submit that the admission of this testimony was error for the reason that the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. With this general proposition we agree. However, where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1950). In State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944), defendants were charged with first-degree murder. The evidence established that when the defendants entered the victim's store, the victim's wife and a customer were present. After asking for change for a dollar and some matches, the defendants drew pistols and informed the victim of the hold-up. As the victim then leaned down below the counter, he was fatally shot. The two defendants fled from the store and were seen by two witnesses coming across the street and getting into a blue Ford. Each witness saw the defendants clearly as they passed within ten feet of them. Another defendant was identified as sitting behind the wheel of the Ford awaiting the other two. Evidence was then introduced over objection that these same three defendants, twenty-seven days after the alleged murder, were observed driving the same blue Ford and shortly thereafter were observed entering a filling station and with pistols robbing the proprietor of $140. The Supreme Court ruled the evidence admissible and competent to show the identity of the persons and the crime under an exception to the general exclusionary rule. We are unable to distinguish the present case from the Biggs case. Here much significance was attached to the green car with New Jersey license plates, which led to the apprehension of the defendants. Consequently, the evidence that the defendants, between the time of the crime charged and their apprehension, committed a robbery utilizing a pistol and driving a green car with New Jersey license plates was relevant and admissible for purposes of identification in view of their defense of alibi.

The defendants further complain that even if the evidence was admissible, they were prejudiced by the failure of the trial court to limit its admissibility to its proper purpose. However, at no place in the record does it appear that the defendants requested such an instruction. Under *91 the well-recognized rule, if evidence is competent for one purpose only and not for another, it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968); State v. Alexander, 16 N.C.App. 95, 191 S.E.2d 395, cert. denied, 282 N.C. 305, 192 S.E.2d 195 (1972); and 2 Strong, N.C. Index 2d, Criminal Law, § 95 (1967). In view of the foregoing, this assignment of error is overruled.

The defendant Henry assigns as error the repeated reference to him by the trial judge as "alias Lee Nelson" in his instructions to the jury. The word "alias" derives from the term "alias dictus" which literally means "otherwise called," and indicates that the accused is called by one or the other names. 3 C.J.S. Alias (1973). It is generally known that some criminals assume another name for the purpose of avoiding apprehension, and the word "alias" has come to connote in the public mind some previous criminal activity. The constant repetition of the word during trial (People v. Klukofsky, 201 Misc. 457, 114 N.Y.S.2d 679 (1951)), or loading the accused with a long list of aliases (D'Allessandro v. United States, 90 F.2d 640 (3d Cir. 1937)) has been criticized. In People v. Grizzel, 382 Ill. 11, 46 N.E.2d 78 (1943) where the record showed no substantial evidence of any aliases, the court stated it was improper to refer to the defendants by them and reversed for this and other improper remarks. However, where there is evidence at trial that the accused was known by a number of names, or that there is uncertainty as to which of a number of names is his true name, it is generally held that the use of the alias in trial is authorized by the evidence and there is no error. State v. Loston, 234 S.W.2d 535 (Mo.1950); Annot., 87 A.L.R.2d 1217 (1963).

In the case at bar, in the title of the case following the name of the defendant Henry, the words "also known as Lee Nelson" appear. There was also evidence, without objection, of the alias. It does not appear that at any time before or during trial the defendant moved to strike the alias from the title or objected to the use of the alias by the District Attorney or the trial judge. Where in the title of the case or during trial an alias is used, if the defendant considers it prejudicial, he has the burden of making a timely motion or objection so that the trial court may take appropriate action; and his failure to do so constitutes a waiver. Too, in this case no prejudice is shown because the use of the alias was justified by the evidence.

We find

No error.

MORRIS and VAUGHN, JJ., concur.