State v. Haney

140 S.E.2d 544 (1965)

263 N.C. 816

STATE of North Carolina v. James S. HANEY.

No. 169.

Supreme Court of North Carolina.

March 3, 1965.

*546 T. W. Bruton, Atty. Gen., Richard T. Sanders, Asst. Atty. Gen., for the State.

Dolley & Harris, Gastonia, for defendant.

PER CURIAM

Taking the evidence in the light most favorable to the State, as we must in considering a motion for nonsuit, it was amply sufficient to establish that defendant Haney, if not the owner, was the operator and controller of the Pontiac, the automobile in which one robbery was perpetrated and another attempted. Defendant Haney stopped the Pontiac while Tomberlin took the dollar bill from Sims at knifepoint. Haney drove the car back to the bowling alley where the Volkswagen was parked and stopped the Pontiac while the Sims automobile was searched. The record does not reveal whether it was Haney or Cantrell, or both, who made the search. Haney then transported Sims to Charlotte while Tomberlin held the knife on Sims and threatened his life if he tried to escape. Furthermore, defendant Haney admitted receiving the dollar which Sims said had been taken from him with the threatened use of a knife, and the keys to the Volkswagen were found in the "Haney car" immediately after his arrest. Clearly, Haney was not a disinterested bystander; he was an active participant in a conspiracy to rob Sims and in the consequent robbery. The motion for nonsuit was properly overruled. State v. Holland, 234 N.C. 354, 67 S.E.2d 272.

When Sims was asked which of the men demanded his money when Tomberlin hit him, his reply was, "I believe Haney said that." Defendant contends that this evidence was merely the expression of an opinion or a guess and was therefore incompetent. This contention cannot be sustained. The witness was speaking of his first-hand observation. His expression, "I believe," merely connoted "an indistinctness of perception or memory." Stansbury, North Carolina Evidence § 122 (2d ed. 1963).

"(W)hen a witness uses such expressions as `I think,' `My impression is,' or `In my opinion,' this will be no ground of objection if it appears that he merely speaks from an inattentive observation, or an unsure memory, though it will if the expressions are found to mean that he speaks from conjecture or from hearsay." McCormick, Evidence § 10 (1954 ed.).

The evidence was competent; its weight was for the jury.

Defendant next contends that the search which revealed the Volkswagen keys in the Pontiac was illegal because conducted without a search warrant some twenty minutes after Haney's arrest. Defendant was under lawful arrest. G.S. § 15-41. The police had the privilege to search his person. State v. Grant, 248 N.C. 341, 103 S.E.2d 339. Under the circumstances of this case they had the privilege, also, to search his automobile without a warrant.

"As incident to a lawful arrest, the conveyance of the person arrested may be searched without a warrant. Accordingly, a search warrant is not necessary to authorize a search of an automobile *547 in which a person was riding, or beside which he was standing, when arrested, and an officer, after arresting and incarcerating accused, may return and make a search of his automobile." 79 C.J.S. Searches and Seizures § 67e (1952); Cf. State v. Giles, 254 N.C. 499, 119 S.E.2d 394.

In Allgaier v. State, 200 Ind. 583, 164 N.E. 315, "after the arrest was made, appellant was taken to the jail, where the automobile was searched. This search was made soon after the arrest and was incident to same." The search revealed two bottles of whiskey, which, the court held, were properly introduced in evidence. Accord People v. Garrett, 232 Mich. 366, 205 N.W. 95; State v. Williams, 328 Mo. 627, 14 S.W.2d 434; State v. Cyr, 40 Wash. 2d 840, 246 P.2d 480; Gray v. State, 243 Wis. 57, 9 N.W.2d 68. In Commonwealth v. Cockfield, 411 Pa. 71, 190 A.2d 898, defendant's automobile was searched without a warrant 57 hours after he had been arrested for arson. In the trunk were found gasoline and a charred roll of toilet paper. In holding the evidence competent, the court said:

"`Incidental', in its pertinent meaning, refers to that which follows as an `incident', i. e., `an event of accessory or subordinate character' [The Oxford English Dictionary, Vol. 5, p. 152]. In our view, the search and seizure of the contents of Cockfield's automobile were clearly `incidental' to the arrest and the one logically followed the other. The time which elapsed between the time of the arrest and the time of the search does not destroy the character of the search as incidental to the arrest. The search and seizure flowed naturally from and were part and parcel of the normal and logical consequences of the arrest. Had the police officers not searched this automobile and seized this gasoline can and tissue they would have been derelict in their duties. * * *" Id. at 77, 190 A.2d at 901.

Defendant's other assignments of error have been considered. They are without merit. In the trial below, we find

No error.