State v. Russ

163 S.E.2d 84 (1968)

2 N.C. App. 377

STATE of North Carolina v. Jerry Kelly RUSS.

No. 6821SC325.

Court of Appeals of North Carolina.

September 18, 1968.

*85 Bradley J. Cameron, Winston-Salem, for defendant appellant.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

CAMPBELL, Judge.

The defendant brings forward four assignments of error.

One, the defendent asserts error in the admission of the testimony by the witness James William Edwards who testified as to statements made by Mankins during the course of the robbery.

The record discloses that the witness testified that Mankins and the defendant came through the door, each with a pistol in his hand, and then the solicitor on behalf of the State asked the witness Edwards:

"All right, sir. Now, go ahead and tell us just what happened and what you did." The witness then answered: "Well, he said, `This is a stickup. We don't want to hurt you, we just want your money.' And so they proceeded to go back towards the back room where I had come from, and Russ went ahead and said, `Is anybody back here?' and I said, `No, I'm here by myself,' and so he went downhe went almost to the back with Mr. Mankins, and they found out that I was telling the truth, that no one else was there but me, and so they came around front and wanted to know where the money was, and he asked if it was in the drawer, which it happened to be the petty cash box, and touched it, and I said *86 that there was no money there, which there wasn't, so I took them over to where I had the cashthe silver trayandunder a box, and brought that out and showed it to them, and Mr. Mankins says, `No, we want the big green.'" At this point, the defendant Russ entered an objection. This objection was overruled and constitutes the defendant's first assignment of error. The witness then continued: "Well, he didn't sayRuss didn't say anything then and Mankins said he just wanted the big green, and I said, `Well, if that is what you want I'll get it for you,' and so I started to go to the through a restroom which adjoins that side of the pharmacy, to go to the back room where the storage room is, and Mr. Russ says, `Wait a minute. Let me go first,' and so he preceded me, and then they found out that I wasn't hiding anything or anything and so I unlocked the back door to the stock room, which was closed and whenever I went in there Mankins said, `Let me.' I said, `I'm not going to try anything funny,' and I went and got the bank bag which had all of the money and checks in it."

This testimony was clearly competent and this assignment of error is overruled.

"A declaration made by one defendant in the presence of the others in perpetrating the common offense is competent as against the other defendants." 2 Strong, N.C. Index 2d, Criminal Law, § 79, p. 593; State v. Hines, 266 N.C. 1, 145 S.E.2d 363.

The defendant's second assignment of error was to the admission in evidence of certain photographs. The record discloses that each of the photographs objected to was admitted by the court under proper instructions to the jury that such photograph was to be considered only for the purpose of illustrating the testimony of the witness and should not be considered as substantive evidence.

"The trial court has discretionary power to permit the introduction in evidence of properly identified diagrams or maps, and photographs, of the scene of the crime for the purpose of illustrating the testimony of the witnesses." 2 Strong, N.C. Index 2d, Criminal Law, § 43, pp. 548-549. This assignment of error is overruled.

The third assignment of error brought forward by the defendant was to the admission of the two pistols in evidence, the one taken from the defendant at the time of his arrest and which he had in his hand, and the other taken from the suitcase found in the room of the defendant at the time of his arrest.

The State's witness, Edwards, testified that at the time of the robbery each of the robbers had a 38-caliber pistol in his hand, that one of the pistols was "all dark" in color and the other had some silver on it. The pistols which were introduced in evidence corresponded to the pistols described by the witness Edwards. It was not error to admit the pistols in evidence.

"Articles which the evidence shows were used in connection with the commission of the crime charged are properly admitted in evidence." 2 Strong, N.C. Index 2d, Criminal Law, § 42, p. 547.

The fourth assignment of error brought forward by the defendant is the refusal of the trial court to sustain the defendant's motion for nonsuit at the close of the evidence. The defendant assigns no authority to sustain this assignment of error and states: "(T)his assignment of error and exception is brought forward in this brief for such consideration as the Court of Appeals may deem proper in order to protect fully all rights which the defendant may have."

We have reviewed the record in this case and there was substantial evidence to support *87 a finding that the offense charged in the bill of indictment had been committed and that the defendant committed it. The record discloses that the defendant had a fair trial before a jury and we find

No error.

MALLARD, C. J., and MORRIS, J., concur.