State v. Crump

186 S.E.2d 369 (1972)

280 N.C. 491

STATE of North Carolina v. Tommie CRUMP.

No. 84.

Supreme Court of North Carolina.

February 9, 1972.

*370 Redden, Redden & Redden, by Monroe M. Redden, Hendersonville, for defendant appellant.

Robert Morgan, Atty. Gen., and Donald A. Davis, Raleigh, Staff Attorney, for the State.

HUSKINS, Justice:

Mrs. Andrews was allowed to testify over objection: "I had never seen the boys before, but anyway in the conversation, they asked Michael, one of them, I don't know which,if he had any jumping cables and would help them start their car. I told Michael it was too near time to close and he had too much work to do to leave." At another point in her testimony, she said over objection: "I don't know which one said it . . . but one said, `Michael, can you take your car?'" Defendant's *371 first assignment of error is predicated on the admission of this evidence. He contends it was incompetent "absent a finding of conspiracy."

The evidence shows that this defendant and Edward Scott were jointly engaged on an illegal mission. They were acting in unison in furtherance of a common design. The evidence gives rise to the permissible inference that they had conspired together to rob Mrs. Andrews and the kidnapping of Michael Penland was necessary to accomplish that objective they needed transportation. Therefore, statements made in furtherance of the common design, whether by the defendant or his partner in crime, are competent. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970). Moreover, the evidence objected to was relevant on the question of identity since it placed the kidnappers and their victim together at the time and place in question. "Any evidence which is relevant to the trial of a criminal action is admissible." State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). Furthermore, Michael Penland testified substantially to the same effect without objection, and the admission of this evidence from Mrs. Andrews was largely cumulative and could not have changed the result of the trial. An appellant must show that evidence alleged to be erroneous was prejudicial and that a different result but for the error would have likely ensued. State v. Woolard, 260 N.C. 133, 132 S.E.2d 364 (1963); State v. Sanders, supra. We hold the evidence was competent. Had it been incompetent, its admission would have been entirely harmless. Stansbury, North Carolina Evidence (2d Ed.) § 9.

Included as part of defendant's first assignment of error is the following question propounded to Michael Penland on direct examination and his answer thereto over objection:

"Q. Did you tell DeBois Edmundson whether or not you could recognize the two men who had been in your car during the course of that night? "A. Yes, sir."

Defendant contends such testimony violates the hearsay rule and the best evidence rule. Michael Penland's testimony as to what he told Officer Edmundson is the best evidence, and the officer's testimony would have been competent only to corroborate what the victim told him. Furthermore, the testimony is not hearsay. Its probative force does not depend upon the competency and credibility of any person other than the witness himself. Hence it cannot be classified as hearsay. Stansbury, North Carolina Evidence (2d Ed.), Hearsay, § 138. We find no merit in any of the three exceptions upon which the first assignment of error is based.

Defendant's remaining assignments are formal and require no discussion. The uncontradicted evidence proves kidnapping beyond a reasonable doubt, State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971), and supports the verdict and judgment. The only error appearing in this record was committed by the defendant and his partner in crime when they embarked upon their unlawful mission which culminated in the kidnapping of Michael Penland.

In the trial below we find

No error.