State v. Woody

178 S.E.2d 407 (1971)

277 N.C. 646

STATE of North Carolina v. Robert Lee WOODY.

No. 93.

Supreme Court of North Carolina.

January 20, 1971.

*410 Robert Morgan, Atty. Gen., Buie Costen, and William W. Melvin, Asst. Attys. Gen., for the State.

White, Crumpler & Pfefferkorn by Joe P. McCollum, Jr., Winston-Salem, for defendant.

LAKE, Justice.

Relying upon State v. Pike, 273 N.C. 102, 159 S.E.2d 334, the defendant assigns as error the failure of the trial judge to conduct a voir dire examination to determine the legality of the defendant's arrest when the defendant objected to the arresting officer's testifying as to what he found upon the defendant's person, no reason for such objection having been stated. This assignment of error is without merit.

The question to which the objection was made was, "What did you find on his person?" Prior to this question, the officer had testified, without objection, that the clerk at the ABC store had told him of the robbery just perpetrated and that the robber had fled from the scene in a brown and white 1958 Ford with two occupants, one a white man and one a Negro, the car bearing a specified license number; that the car in which the defendant, a Negro, was riding with a white man met this description and carried a license tag with the specified number; the officer approached this car and instructed the defendant to get out and put his hands on the top of the car, which the defendant did; and the officer then searched him. Previously, Mr. Wooten, the white man who was in the vehicle with the defendant, had testified, without objection, that this occurred seven or eight minutes after they left the ABC store, and that he told the officers the defendant had robbed the store and had the money and the pistol.

Under these circumstances, the arrest of the defendant without a warrant was clearly lawful. G.S. § 15-41(2). Having every reason to believe that the defendant was an armed robber, fleeing from the scene of the crime just perpetrated, it was lawful for the officer, as an incident of the arrest, to search him then and there for weapons and for the fruits of the robbery. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; State v. Tippett, 270 N.C. 588, 595, 155 S.E.2d 269.

At the time of the defendant's objection to the solicitor's question concerning the result of the search, the testimony already received, without objection, showed a lawful arrest and a lawful search. The defendant did not request an inquiry in the absence of the jury into these matters and did not suggest that he desired to offer testimony contradicting that of the State on these points. State v. Pike, supra, on *411 the other hand, was a case in which there was no search of the defendant, but the officer was asked what items the defendant, himself, removed from his pocket in the presence of the officers. Upon objection, the jury was excused and, while the jury was out, the defendant requested the court to hear his testimony with reference to the admissibility of the self-incriminating evidence. This request was denied and the officer was thereupon permitted to testify, in the presence of the jury, concerning the items so removed by the defendant from his own pocket. The Pike case is clearly distinguishable from the present one.

The assignment of error for the failure of the trial court to grant the defendant's motion for judgment of nonsuit in both cases is overruled. It would be difficult to imagine clearer evidence of robbery with firearms than that presented by the State in this case. Upon this motion, the defendant's testimony as to his being under the influence of alcohol and a tranquilizer pill would not be considered. On the motion of judgment of nonsuit, the evidence of the State must be taken to be true and interpreted in the light most favorable to the State's contentions. The offense of kidnapping consists in the unlawful taking and carrying away of a person by force and against his will. State v. Bruce, 268 N.C. 174, 182, 150 S.E.2d 216; State v. Lowry and State v. Mallory, 263 N.C. 536, 541, 139 S.E.2d 870. The evidence of the State is ample to show the defendant so took Wooten and carried him from the scene of the robbery to the point of the defendant's arrest. The defendant's testimony that Wooten went willingly, in response to the defendant's offer to pay him for doing so, is not to be considered upon the motion for judgment of nonsuit.

The defendant's third assignment of error is that the judge, in instructing the jury as to the elements of the offense of kidnapping, did not state that the taking and carrying away of the victim must be done unlawfully or without lawful authority. In the present case, there was no evidence to suggest and no contention to the effect that the defendant took and carried Wooten away from the ABC store by lawful authority. Furthermore, the court expressly instructed the jury that it would return a verdict of not guilty if the State has failed to satisfy it from the evidence and beyond a reasonable doubt that the defendant "unlawfully, wilfully and feloniously, by the use of a pistol * * * forcibly and against his will took and carried Wooten away by making Wooten drive him from the ABC store * * *." (Emphasis added.) Immediately prior to this statement, the court instructed the jury, "And kidnapping * * * means the unlawful taking and carrying away of a person by force against his will." (Emphasis added.) This assignment of error is overruled.

The fourth assignment of error is that the judge "failed to instruct on the significance of Mr. Wooten's consenting to driving the defendant." On the contrary, the court stated four times in its charge that to constitute the offense of kidnapping, the taking and carrying away of the alleged victim must be "against his will." In addition, the court, in reviewing the defendant's contentions, instructed the jury that the defendant contended that he did not kidnap Wooten, but Wooten agreed to drive the defendant for a sum of money. There is no merit in this assignment of error.

The fifth and last assignment of error is that the judge failed to instruct fully upon the defense that the defendant was under the influence of drugs. It is also without merit.

The sentences imposed upon the defendant for these offenses were severe, but neither exceeded the maximum permitted by the statute applicable to the offense in question. It was in the discretion of the trial judge to provide that they should run consecutively and not concurrently. With his exercise of this discretion, we are not authorized to interfere.

No error.