State v. Belk

150 S.E.2d 481 (1966)

268 N.C. 320

STATE v. Thurlow BELK. STATE v. Curtis PEARSON, Jr. STATE v. Fred BERRY, Jr.

Nos. 262, 263 and 272-B.

Supreme Court of North Carolina.

October 19, 1966.

*483 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn for the State.

Charles B. Merryman, Jr., Winston-Salem, for defendant Thurlow Belk.

James J. Caldwell, Charlotte, for defendant Curtis Pearson, Jr.

Francis O. Clarkson, Jr., Charlotte, for defendant Fred Berry, Jr.

BRANCH, Justice.

Defendants contend that the trial court erred in denying their motions to suppress the evidence derived from the search of the automobile and in allowing testimony in reference thereto. In considering this contention it becomes necessary to first consider the case against defendant Fred Berry, Jr., the driver in possession and control of the automobile.

As to defendant Berry: In the case of State v. Moore, 240 N.C. 749, 83 S.E.2d 912, Denny, J. (later C. J.), speaking for the Court, stated: "It is generally held that the owner or occupant of premises, or the one in charge thereof, may consent to a search of such premises and such consent will render competent evidence thus obtained. Consent to the search dispenses with the necessity of a search warrant altogether. (Citing cases)." This therefore poses the question of whether the defendant Fred Berry, Jr., consented to a search of his automobile. On this question the court, in the absence of the jury, heard testimony as to whether the search of the defendant's automobile was made with his consent. The evidence taken by the court on voir dire was to the effect that when one of the officers asked for permission to take a look in the vehicle, Berry replied that he "would get the key and let us (the officers) look in the trunk." It would not seem reasonable that this answer was a limitation as to where the officers might search. The record reveals that the officers were able to observe all of the defendants sitting in the automobile and had seen the paper bag in the possession of one of the defendants. Hence, it would seem reasonable that when the owner and operator of the automobile made accessible to the officers that portion of the automobile which was beyond their vision and to which they did not have ready physical access, he gave consent that any part of the automobile might be searched. This is buttressed by the fact that the record does not reveal any objection or protest by any one of the defendants when the search was conducted.

In the case of State v. Moore, supra, the facts show that officers, without search warrant, went to the premises of the defendant, which was a one-story wooden building. The front room of the house was being used as a dance hall and for the sale of canned goods, cigarettes and soft drinks. There was a hall or bedroom between the front room and the kitchen. The kitchen was part of defendant's living quarters. The officers in this case requested permission to look around the premises for stolen goods, to which the defendant replied, "Go ahead, it is not around here but you are welcome to search." The store room or dance hall was searched, and then the officers went through an open door into the kitchen, where they found a tea kettle full of nontaxpaid whiskey. At the trial the defendant objected and moved to strike evidence with reference to liquor found in his kitchen, on the ground that the officers did not have a search warrant and therefore the evidence was incompetent. There was squarely presented the question whether the defendant consented to the search of the whole premises, including his kitchen. The Court answered this question in the affirmative, and held that "The ruling of a trial judge on voir dire, as to the competency or incompetency of evidence, will not be disturbed if supported by any competent evidence. (Citing cases) Just as the voluntariness of a confession is the test of admissibility, * * * so is the consent of the owner or person in charge of one's *484 home or premises essential to a valid search thereof without a search warrant."

In the instant case the judge, after conducting a voir dire as to the competency of the evidence, ruled that the evidence was admissible. Certainly the record reveals some competent evidence to support the judge's finding on voir dire. It is our opinion, and we so hold, that the search was valid and that the trial court did not commit error in denying defendants' motions to suppress the evidence.

As to the defendants Thurlow Belk and Curtis Pearson: Our conclusion as to defendant Fred Berry, Jr., would equally apply to both of these defendants. Moreover, these defendants were passengers in the automobile which was in the possession and control of Fred Berry. This Court clearly held in the case of State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506, that passengers in a car may not object to incriminating evidence found in the car upon search without a warrant when the person having possession and control of the car consents to the search. Therefore, the contentions of Thurlow Belk and Curtis Pearson as to this assignment of error are without merit.

The defendants contend that the court, purporting to quote from testimony, committed error in its charge to the jury by using the term "three black cats in a white Buick" when referring to the defendants, and that this reference unduly influenced the jury and was an expression of opinion by the court, in violation of G.S. § 1-180. We have carefully reviewed the record and we cannot find that any witness used the term "three black cats in a white Buick."

"Every person charged with crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Canipe, 240 N.C. 60, 81 S.E.2d 173.

"It can make no difference in what way or manner or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, by comment on the testimony of a witness, by arraying the evidence unequally in the charge, by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial. The statute forbids any intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury." (Emphasis added). State v. Simpson, 233 N.C. 438, 64 S.E.2d 568.

Both the courts and those engaged in the active trial practice recognize the strong influence a trial judge may wield over the jury. "The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. G.S. § 1-180." State v. Carter, 233 N.C. 581, 65 S.E.2d 9. This principle was also enunciated by Walker, J., in the case of Withers v. Lane, 144 N.C. 184, 56 S.E. 855, in these words: "The judge should be the embodiment of even and exact justice. He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance, which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands. Every suitor is entitled by the law to have his cause considered with the `cold neutrality of the impartial judge' and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged."

It becomes necessary for us to consider the probable effect upon the jury of the use of the term "three black cats in a white Buick."

Webster's Seventh New Collegiate Dictionary defines "cat" as "a carnivorous *485 mammal (Felis Catus) long domesticated and kept by man as a pet or for catching rats and mice." In the Dictionary of American Slang: Wentworth & Ferner, ed., Thomas Y. Crowell Co., N.Y., 1960, we find this definition of "cat": "A man who dresses in the latest style and pursues women; a dude, a sport; one who tomcats; one who is worldly, wise, or hep."

We doubt that the jury would accept the judge's phrase as describing the defendants as "felis catus" but would more likely associate this phrase with the words used in the slang and everyday vernacular. Whichever connotation the jury might accept would not be complimentary, but, at best, would tend to be derogatory and prejudicial.

In the instant case the expression used in the judge's charge might well have affected the credibility of the defendants as witnesses and injected a prejudicial opinion of the court into the instructions given by the court. This entitles the defendants to a new trial.

We find no prejudicial error in the other assignments of error brought forward by the defendants.

New trial as to each defendant.