State v. Perry

Annotate this Case

169 S.E.2d 839 (1969)

275 N.C. 565

STATE of North Carolina v. Bobby PERRY.

No. 19.

Supreme Court of North Carolina.

October 16, 1969.

*843 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Alfonso Lloyd, and R. P. Upchurch, Raleigh, for defendant.

LAKE, Justice.

Without objection, Mrs. Womble testified that her assailant told her he had been released from prison on the day before the events related by her occurred. The defendant assigns as error the admission, over his objection, of testimony by the supervisor of the Wake Advancement Center, a unit of the prison system, that the defendant had been released from the Center on the day preceding those events. There was no error in this ruling.

The defendant offered no evidence. Nevertheless, his plea of not guilty put in issue every material element of the State's charges against him. The identity of the defendant with the perpetrator of the acts to which Mrs. Womble testified was obviously a material issue. It remained an issue notwithstanding Mrs. Womble's in-court identification of the defendant as her assailant. The defendant did not admit that he was the person who accompanied Mrs. Wombel at the time in question. It was not necessary for the State to rely solely upon the identification made by Mrs. Womble in proving its contention that he was that person. It could introduce other evidence, not otherwise incompetent, which was relevant to the identification of the assailant.

The statement by the assailant placed him within a narrowly limited groupmen released from prison the preceding day. Had the group been, instead, men released from a specified hospital or other group on a specified date, evidence that the accused was released from such institution or group on such date would clearly be competent in the absence of other ground for objection.

The defendant contends that testimony of his release from prison was incompetent because it is evidence that he committed a criminal offense other than those for which he is presently indicted.

It is well settled that in the trial of one accused of a criminal offense, who has not testified as a witness in his own behalf, the State may not, over objection by the defendant, introduce evidence to show that the accused has committed another independent, separate criminal offense where such evidence has no other relevance to the case on trial than its tendency to show the character of the accused and his disposition to commit criminal offenses. State v. McClain, 240 N.C. 171, 81 S.E.2d 364, 365; State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; Stansbury, North Carolina Evidence, 2d Ed., § 91; 29 Am.Jur.2d, Evidence, § 320. It is, however, equally well settled that evidence relevant to the question of the identity of the accused with the perpetrator of the offense with which he is presently charged is not rendered incompetent by the mere fact that it discloses the commission by him of some other criminal offense. State v. McClain, supra; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352; State v. Stancill, 178 N.C. 683, 100 S.E. 241; 29 Am.Jur.2d, Evidence, §§ 321, 322. Thus, in State v. Spencer, 176 N.C. 709, 97 S.E. 155, a witness having testified that she observed at the scene of the offense charged a man named Spencer "who had been in the reformatory," the State was permitted to show that the defendant Spencer had been an inmate of the reformatory. Where the identity of the defendant and the perpetrator of the offense with which he is charged is at issue, the evidence tending to show his commission of another criminal offense, and thereby to show his identity with the perpetrator of the offense with which he is presently charged, is not rendered incompetent by the fact that a witness has testified to such identity. State v. Biggs, supra; State *844 v. Tate, 210 N.C. 613, 188 S.E. 91. In the present case, the testimony did not disclose the details or even the nature of the offense for which the defendant had previously been imprisoned.

The defendant also assigns as error the admission in evidence of certain testimony by Dr. Summerlin. This witness testified that specimens taken by him from the person of Mrs. Womble shortly after the alleged assault were "sent to the laboratory" for a test for acid phosphatase. In response to the question, "What was the finding in this particular test?" he answered, "7,824 units per cc." At that point the defendant objected and moved to strike the answer. The record strongly indicates, if it does not require, the conclusion that the witness was not the person who made the test. Thus, the question was subject to objection on the ground that it called for hearsay evidence. However, it is well settled that an objection must be interposed to an improper question without waiting for the answer and, if the objection is not made in apt time, a motion to strike a responsive answer is addressed to the discretion of the trial court, except where the evidence is rendered incompetent by statute. State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Warren, 236 N.C. 358, 72 S.E.2d 763; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; State v. Stancill, supra; State v. Pitts, 177 N.C. 543, 98 S.E. 767; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Lowry, 170 N.C. 730, 87 S.E. 62; State v. Lane, 166 N.C. 333, 81 S.E. 620; Stansbury, North Carolina Evidence, 2d Ed., § 27, note 95. In the present instance, the answer was responsive, there is no statute involved and there is nothing to indicate abuse of discretion in the ruling of the trial court.

There is, likewise, no merit in the contention of the defendant that it was error for the court to permit Dr. Summerlin to give his opinion as to the interpretation of the result of this test. Uncontradicted and unchallenged testimony in the record is ample to support a finding that Dr. Summerlin is a medical expert, qualified to testify as an expert witness in the field to which his testimony in this case relates. The basis for the contention of the defendant is the following statement in the record before us, apparently a stipulation by counsel in the preparation of the record on appeal:

"The State did not request the court to find this witness to be an expert. The court did not make a finding that this witness was an expert; the defendant did not admit this witness to be an expert, and the defendant did not object to testimony of this witness on the ground that he was not an expert."

In the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness. Paris v. Carolina Portable Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131; Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; State v. Atlantic Ice & Coal Company, 210 N.C. 742, 188 S.E. 412; Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358; Stansbury, North Carolina Evidence, 2d Ed., § 133; Strong, N.C. Index, 2d Ed., Evidence, § 48. Here, the record shows the defendant did not object to Dr. Summerlin's being accorded the status of an expert witness. Though it would have been better practice for the solicitor to have tendered him formally as an expert, and for the court so to rule expressly, under the circumstances disclosed in this record there was no error in permitting the witness to state his opinion in response to a question otherwise competent. Furthermore, his testimony as to the interpretation of the result of the test was a foregone conclusion in view of earlier testimony by him, admitted without objection *845 by the defendant, concerning the nature and conclusiveness of the test. Thus, the overruling of the objection to the specific question and answer, which the defendant assigns as error, was, at the most, harmless error.

There was no error in the admission of the State's Exhibit No. 1. The bag and its contents were found in the adjoining lot and only a short distance from the place where Mrs. Womble's car was parked when she was first accosted and seized by her assailant. It was found by a search of the area approximately two hours after the alleged kidnapping. Taped to the deck of cards in the bag was a paper bearing the name of the defendant. The relevance of this evidence as corroboration of Mrs. Womble's identification of the defendant as her assailant is obvious. Its weight was, of course, for the jury.

The assignments of error relating to the instructions to the jury are without merit. The court in its charge correctly defined the crime of rape and instructed the jury correctly as to its elements, the burden of proof and the verdicts which the jury might render upon the indictment charging the defendant with that offense. See: State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190. As to the crime of kidnapping, the court instructed the jury, "Kidnapping is the taking and carrying away of a human being by physical force or by constructive force unlawfully and without lawful authority." (Emphasis added.) This definition is in accord with our decision in State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870. See also: State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. Gough, 257 N.C. 348, 126 S.E.2d 118, 95 A. L.R.2d 441.

The defendant complains that the court in its charge did not instruct the jury that in order to return a verdict of guilty, upon the indictment charging the defendant with kidnapping, it must find beyond a reasonable doubt that the acts were done "unlawfully", "wilfully", and "feloniously" or "with felonious intent" and that the court failed in its instructions to define the terms "feloniously" or "with felonious intent." In State v. Witherington, 226 N.C. 211, 37 S.E.2d 497, this Court said that it is not sufficient to instruct the jury that it should return a verdict of guilty of kidnapping if the State has satisfied it beyond a reasonable doubt that the defendant "did forcibly take and carry away the person of the prosecuting witness." There, this Court said "there must be further finding that the taking and carrying away was unlawful or done without lawful authority, or effected by fraud."

We need not determine whether such an instruction is essential where, as here, the defendant offers no evidence and there is neither any evidence nor any assertion that he had a lawful right or authority to force the alleged kidnap victim to accompany him from one place to another. For the present, it is sufficient to note that, in addition to the above quoted definition of kidnapping, the court instructed the jury: "Upon the charge of kidnapping * * * I instruct you that, if you find from the evidence beyond a reasonable doubt that this defendant * * * did by the use of force, by the threat of force sufficient to cause the prosecuting witness to leave the place where she had a right to be and was and goes to some other place under the control and direction of the defendant without any lawful authority, it would be your duty to find the defendant guilty of kidnapping as charged." (Emphasis added.) While the grammatical structure of this sentence, as it appears in the record, indicates a possible omission or alteration of a word in the transcription, the meaning is clear and it complies with the requirement of the Witherington case. In the next sentence the jury was told, "If you fail to so find as to any or all of those facts, it would be your duty to return a verdict *846 of not guilty as to that charge * * *"

The defendant also contends that there was error in denying his motions to quash each of the bills of indictment and in instructing the jury that, upon the charge of rape, they might return a verdict of guilty as charged without adding thereto a recommendation that the defendant be sentenced to imprisonment for life, in which event the death sentence would be imposed.

The indictments were proper in form. The motions to quash were properly denied. The jury having returned a verdict of guilty upon the charge of rape with a recommendation that the sentence be imprisonment for life, which sentence was imposed, we do not in this case reach the question of whether a death sentence could lawfully be imposed under the statutes in effect at the time of this offense and at the time of the trial. A similar question, upon the charge of murder, was considered by us in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, and decided adversely to the contention of the defendant here, but it is not before us in the present case. In any event, the conviction and sentence upon the charge of kidnapping would not be affected by the instruction of the court as to the several verdicts which might be rendered by the jury upon the charge of rape.

The defendant's court appointed counsel have with diligence combed the record and have made 51 assignments of error. In view of the serious nature of the offenses charged and the imposition in each case of a sentence to imprisonment for life, we have carefully considered each of these assignments of error, including those abandoned by the failure of the defendant to bring them forward in his brief. We find no error which would justify reversal or modification of the judgment of the court below, either in the kidnapping case or in the rape case.

No error.

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