State v. Saunders

Annotate this Case

95 S.E.2d 876 (1957)

245 N.C. 338


No. 363.

Supreme Court of North Carolina.

January 11, 1957.

*878 H. Bryce Parker and Wesley Bailey, Winston-Salem, for defendant, appellant.

George B. Patton, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The State's evidence relative to the plans to commit the offenses charged and the means by which they were carried out consisted of the testimony of Kraeuter, the accomplice, and of B. B. Price, the victim. However, the defendant, on crossexamination, made many admissions tending *879 to support Kraeuter's story. He admitted he and Waldemaier had been in partnership; that Waldemaier took Kraeuter and another man to the defendant's home in Washington on Monday preceding the hold-up; that the defendant took Kraeuter to his basement (where Kraeuter testified the plans were made). He admitted riding the bus with Kraeuter and the latter's companion from Washington to Winston-Salem as Kraeuter testified. He admitted making inquiry for Price at the Southside Poolroom and Filling Station just before Kraeuter and Calabria took Price out to rob him. While the story told by Kraeuter and that told by the defendant are in harmony in many points, they are in conflict with respect to the defendant's participation in the plan to rob Price or to commit any other violation of the law. The defendant contends, therefore, Kraeuter's story of the defendant's participation is unsupported and the State's evidence was insufficient to justify conviction.

The courts of the several states are not in agreement as to whether the testimony of an admitted accomplice is sufficient to convict. Our Court, however, adheres to the rule that such evidence, even if unsupported, is sufficient if it satisfies the jury of guilt beyond a reasonable doubt. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473, citing cases. Therefore, the defendant's motions to dismiss were properly overruled.

The defendant assigns as error the admission of the evidence of Miss Caldwell that the distance from Bristol, Virginia, to Charlotte, North Carolina, and from Bristol to Winston-Salem is the same157 miles; and from Charlotte to Winston-Salem is 79 miles. These facts were within her knowledge obtained over a period of 18 years as travel counsel and her testimony with respect thereto was properly admitted. Jordan v. Glickman, 219 N.C. 388, 14 S.E.2d 40. However, we think the court should have taken judicial notice of these distances without proof. In the early case of Furniture Co. v. Southern Express Co., 144 N.C. 639, 57 S.E. 458, 459, decided in 1907, this Court said: "* * * It is generally held that the courts will take judicial notice of the placing of the prominent towns within their jurisdiction, and especially of county sites, and their accessibility by railroads connecting them with trunk lines of the country; and there is well considered authority to the effect that courts may also take such notice of the distance to prominent business centers of other states, etc." A much stronger case for taking such notice can be made out today when almost every town in the country is connected by a ribbon of concrete or asphalt over which a constant stream of traffic flows. Every filling station has maps available to the traveler without charge. Highway signs at road crossings give both distance and direction. In fact, so complete and so general is the common knowledge of places and distances that the court may be presumed to know the distances between important cities and towns in this State and likewise in adjoining states. Am.Jur., Vol. 20, sec. 57, p. 80; 32 C.J.S., Evidence, ยง 730; Wigmore on Evidence, 3rd Ed., Vol. 9, sec. 2575 (see pocket supplement, 1955); Chappell v. Stallings, 237 N.C. 213, 74 S.E.2d 624; Mallard v. Eastern Carolina Regional Housing Authority, 221 N.C. 334, 20 S.E.2d 281; Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582. The objection to the testimony of Miss Caldwell is without merit.

Exceptions were interposed to parts of the charge. The court reviewed the evidence for the State and then gave the State's contentions arising on the evidence. Likewise, the court reviewed the defendant's evidence and gave his contentions arising on the evidence. In reviewing the State's evidence, the court said:

"The State says and contends that Mr. Kraeuter has not denied that he has interest in this case, but the State *880 says and contends that the defendant is just as much interested in the outcome of this case, and even more so than the witness Kraeuter; that Kraeuter has plead guilty, or has entered a plea of nolo contendere, which, so far as punishment is concerned, amounts to the same thing; that the defendant has not yet been convicted; (that he still maintains some hope that he may not be, so the State says and contends that your scrutiny of the defendant's testimony should be made in the light of his present very substantial interest in this case.)"

The defendant assigns as error that portion of the statement in parentheses. The clause objected to was a part of the court's recital of the State's contentions. No objection was interposed, and no request was made for correction. The court had fully charged the jury to scrutinize the evidence of Kraeuter for the reason that he was an admitted participant in the commission of the crimes charged. It is difficult to see how the jury could have understood the statement objected to as anything more than a contention on the part of the State. The court concluded the charge with the following admonition to the jury:

"I have tried not to stress one side's contentions in this case more than the other, but you understand, of course, that one person cannot think of everything that can be said for either the State or the defendant, and I have made no attempt to time my statement of the contentions. I simply say to you that if I have stressed one side more than the other, I am unconscious of having done so; I have not meant to, and you will attach no importance to any apparent emphasis. It is your duty to give both the State and the defendant the benefit of any reasonable contention which arises in its behalf or his behalf, in your deliberations before you arrive at this verdict."

Before the jury retired, attorneys for the State and the defendant indicated that the charge covered their contentions. As a general rule, objections to the statement of contentions and to the review of the evidence must be made before the jury retires or they are deemed to have been waived. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; (for further authorities, see Index to North Carolina Reports, Appeal and Error, sec. 24, footnote 289.) The part of the charge objected to does not come within the exceptions to the general rule.

A review of all exceptive assignments fails to reveal error of law committed in the trial.

No error.

JOHNSON, J., not sitting.