State v. Norwood

Annotate this Case

222 S.E.2d 253 (1976)

289 N.C. 424

STATE of North Carolina v. Richard M. NORWOOD, Jr.

No. 79.

Supreme Court of North Carolina.

March 2, 1976.

*256 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

Winston, Coleman & Bernholz by Barry T. Winston and J. William Blue, Jr., Chapel Hill, for defendant-appellant.

SHARP, Chief Justice.

Defendant's first two assignments of error challenge the sufficiency of the kidnapping and burglary indictments, set out in pertinent part in the preliminary statement of facts. At the trial defendant made no motion to quash, but he now argues that both indictments are defective and violative of N.C.Const. art. I, §§ 22 and 23 because neither sets forth the essential elements of the crime of kidnapping. His argument is that the indictments should have charged that Susan Brogden was forcibly carried *257 away against her will. This argument is without merit; past decisions have rejected it.

Since the conduct charged occurred prior to 1 July 1975, the indictment upon which defendant was tried for kidnapping was drawn under G.S. 14-39 (1969), which made kidnapping a felony, providing in pertinent part: "It shall be unlawful for any person. . . to kidnap . . . any human being . . .." (We here note that, effective 1 July 1975 G.S. 14-39 was rewritten by N.C.Sess.Laws, ch. 843 (1975), codified in N.C.Gen.Stats. vol. 1B, (Supp.1975).)

In State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971), this Court held essentially the same language used in the present indictment sufficient to charge the crime of kidnapping. Justice Huskins, writing for the Court, after noting that the bill of indictment was drawn in the words of G.S. 14-39, which punished kidnapping without defining the word, said: "This is sufficient. If an indictment charges the offense in a plain, intelligible, and explicit manner and contains averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the same offense, it is sufficient. (Cites omitted.) An indictment for a statutory offense is sufficient as a general rule when it charges the offense in the language of the statute. (Cites omitted.)

"In State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966), a bill of indictment charging that defendant `unlawfully, wilfully, feloniously and forcibly did kidnap' a named person was held sufficient to withstand a motion to quash, since the word `kidnap' has a definite legal meaning. It follows, therefore, that defendant's challenge to the sufficiency of the bill of indictment in this case is without merit and is overruled. We think the bill adequately informed defendant of the charge against him and that he understood it." State v. Penley, supra, 277 N.C. at 707-08, 178 S.E.2d at 492. See also State v. Roberts, 286 N.C. 265, 210 S.E.2d 396 (1974); State v. Lowry, 263 N.C. 536, 539-40, 139 S.E.2d 870, 873 (1965).

Thus, we hold that the indictment in the present case was sufficient to support the conviction for kidnapping.

The essential averments of a burglary indictment are set out in State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975) and State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923). The indictment for burglary must specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering, and it is not sufficient to charge generally an intent to commit an unspecified felony. However the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is enough to state the offense generally and to designate it by name. See also 12 C.J.S. Burglary § 32 (1938). Under these rules the burglary indictment here was clearly sufficient.

Defendant's final assignment of error asserts that the trial court committed prejudicial error in admitting into evidence the handcuffs which defendant placed on Miss Brogden's wrists. His contention is that the State failed to prove "a proper chain of custody and failed to show that the handcuffs were in substantially the same condition as they were when defendant used them." At the outset we note that defendant did not object to the admission of the handcuffs when offered, and the settled rule is that the failure to make an objection waives it. 1 Stansbury's North Carolina Evidence § 27 (Brandis Rev.1973). However, we also note that the assignment of error has no merit; the handcuffs were properly admitted.

Miss Brogden testified that she would recognize the handcuffs that had been used to shackle her. When she was shown a pair of handcuffs marked as State's Exhibit No. One she said: "I recognize the handcuffs and believe them to be the same ones that *258 Ricky [defendant] put on my hands that night. I believe that these are the handcuffs that he used on me that night because they say Detective Romo on them." Detective Horton also testified without objection that State's Exhibit One was the handcuffs he had received from Mrs. Davis, who told him she had taken them from a night stand by the bed in defendant's mobile home "when she went to get Susan."

The rule as to the admissibility of demonstrative evidence such as the handcuffs here is succinctly stated in 1 Stansbury's North Carolina Evidence § 118 (Brandis Rev.1973): "So far as the North Carolina decisions go any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. Thus, weapons may be admitted where there was evidence tending to show that they were used in the commission of a crime or in defense against an assault. In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime.. . ."

State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967) is cited in support of these propositions. In that case, although defendant was awarded a new trial on a different ground, the Court overruled defendant's exception to the admission of a baseball bat which was the alleged murder weapon. The Court said: "The defendant challenges the admission into evidence of the baseball bat, saying there was `no corroborating evidence connecting the defendant with the exhibit.' However, an eye witness to the event identified it as being the one used by Fuller to strike Jenkins. This alone made it admissible as an exhibit. No corroborating evidence is required." Id. at 712, 155 S.E.2d at 287.

In the present case the victim, an eyewitness, identified State's Exhibit One as the handcuffs defendant used to bind her hands. The handcuffs were clearly relevant and the witness's identification of them was enough to make them admissible notwithstanding the fact that she did not say they were in substantially the same condition as when defendant used them. See State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975). The handcuffs, made of materials relatively impervious to change, were sufficiently identified by the witness and the trial court did not err in admitting them. Defendant's contention could easily have been met at trial if he had objected on the grounds he presently asserts.

In the trial below we find

No error.