State v. Shoup, 226 N.C. 69 (1946)

Jan. 31, 1946 · Supreme Court of North Carolina
226 N.C. 69


(Filed 31 January, 1946.)

1. Criminal Law § 67—

On an appeal in criminal cases tlie Supreme Court cannot pass upon the weight of the evidence but only whether there is sufficient evidence to support conviction.

2. Larceny § 7 — Evidence held sufficient to sustain conviction of larceny from the person.

The evidence tended to show that defendant and another, both of whom had been drinking, rode some distance in adjacent seats on a bus, that defendant got off the bus before reaching the station in a city short of the destination called for on his ticket, that he was later found in a hotel registered under an assumed name and having in his possession four $50 *70bills and three $20 bills, the identical denominations which his co-passenger had missed from his pocketbook when he found it on his bus seat after search upon discovering it was missing when he alighted from the bus, that the co-passenger had seen the money in his pocketbook after passing a station some 85 miles before the station at which defendant alighted, together with testimony that defendant made a statement to the officers to the effect that he did not know how much money his co-passenger had until he took it, with circumstances tending to show that prior thereto defendant did not have large sums of money is held sufficient to overrule defendant’s motions for judgment of nonsuit.

3. Criminal Law § 34d—

Evidence that after the crime was committed defendant left the bus before reaching the station in a city prior to the city called for on his ticket, and registered at a hotel under an assumed name held competent as an incriminating circumstance in the nature of an admission as tending to show motive to cover up identity and avoid being traced.

4. Criminal Law § 81c—

Where defendant does not make it appear that a statement made by him was true, testimony of a police officer that he did not think it worth while to investigate defendant’s statement, cannot be held prejudicial.

5. Constitutional Law § 35—

The introduction in evidence of incriminating papers taken from the defendant at the time of his arrest does not infringe the constitutional guarantee against self-incrimination, Art. I, sec. 11, and in the instant case defendant went upon the stand and thus waived such right.

6. Larceny § 6—

A paper issued defendant by his employer which entitled defendant to two weeks delay in paying a $5 deposit on house rent held competent in this prosecution for larceny to contradict defendant’s claim as to the amount of money he had prior to the commission of the crime.

7. Criminal Law § 78e (2) —

An exception to the statement of the testimony of a witness is not available on appeal when defendant does not bring the matter to the trial court’s attention at the time for immediate correction.

8. Criminal Law § 531c—

Statement of a contention favorable to defendant cannot be held for error, since, if defendant desired the statement made in any particular form, and, in fact, to entitle defendant to the statement of the contention at all, it is incumbent on defendant to submit request therefor.

9. Criminal Law § 53b—

The failure of the court to charge the jury as to the degree of circumstantial proof required to convict is not held for error in this case, the charge that the jury should be satisfied from the evidence beyond a reasonable doubt of defendant’s guilt in order to justify conviction being sufficient on the degree of proof required. G. S., 1-180.

*71Appeal by defendant from Alley, Jat 9 July, 1945, Mixed Term, of Guileoed.

The defendant was tried upon an indictment charging him with larceny of $260 from the person of C. H. Josey, and challenges the conduct of the trial in the particulars noted. The following summary is sufficient to present the case for review:

There was evidence to the effect that Josey and the defendant had ridden in the same bus seat from some distance east of Ealeigh, Josey going home to Salisbury, and Shoup to Charlotte. Both had been drinking, and Josey had had several drinks. Jósey had in his wallet about $300, which he had borrowed on his trailer from a bank in Norfolk— four $50 bills and three twenties in one compartment and the rest in another. The two sat together again on changing buses at Ealeigh, and Josey saw the money in his pocketbook beyond Ealeigh. Shoup got off the bus in Greensboro, before reaching the station, and Josey went on to Salisbury. There, on getting off the bus, he missed his pocketbook, and turning back, found it lying in the seat he had occupied, but found the four $50 bills and three twenties gone. The rest of the money was not disturbed.

Two police officers of Greensboro, having been given a description of Shoup and the denominations of the seven bills lost, found Shoup at a hotel, registered under the name of Foster. They found a purse hidden under a rug in the room, which Shóup admitted was his, containing four $50 bills, three $20 bills, and three ones. Shoup claimed that the money was his. Asked why he took the money, he replied that he didn’t know the man had that much money. On cross-examination one of the officers modified the testimony to this: “I said, ‘You did not know he had that much money until you took it?’ and he said, ‘Yes.’ ”

On the defense Shoup gave various reasons why he got off at Greensboro instead of going on to Charlotte as his ticket read, and introduced evidence tending to account for the money in his possession. As to the registration at the hotel, he said he sometimes went under 'the name F oster.

The State, over defendant’s objection, was permitted to introduce a “notice” or paper issued to defendant by the Housing Office of Norfolk Navy Yard guaranteeing two weeks rent at Dale Dormitories, which would permit him to delay paying a “security deposit of $5” to the apartments for that length of time. The purpose as stated was to show the improbability of defendant having that much money at the time. Defendant stated that such a paper was issued to “all of them.”

At the conclusion of the State’s evidence, and again at the conclusion of all the evidence, defendant moved for judgment of nonsuit, and the *72motions were denied. Tbe defendant was found guilty and from tbe judgment imposing sentence appealed, assigning errors.

To save repetition particular incidents of tbe trial to wbicb exceptions were taken are noted in tbe opinion.

Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.

William E. Corner for defendant, appellant.

Seawell, J.

Our office on review does not permit us to pass on tbe weight of evidence. We can only assure tbe demurring defendant tbat be shall not be convicted except on evidence tending to show bis guilt; S. v. McKinnon, 223 N. C., 160, 25 S. E. (2d), 606; S. v. Johnson, 220 N. C., 773, 18 S. E. (2d), 358; S. v. Stephenson, 218 N. C., 258, 10 S. E. (2d), 819; G. S., 15-173, and annotations; and we cannot agree with counsel for tbe appellant tbat tbe evidence submitted to tbe jury on tbe trial is not of tbat character. Tbe motions for judgment as of non-suit were properly overruled.

Appellant’s first exception relates to tbe evidence tbat be registered at a hotel in Greensboro under an assumed name, after breaking bis trip to Charlotte at tbat point and leaving tbe bus before reaching tbe station. Taken with other related circumstances it leads to tbe inference tbat bis motive was to cover up bis identity and avoid being traced for tbe recent crime. It was in tbe nature of an admission and competent as an incriminating circumstance. S. v. Payne, 213 N. C., 719, 197 S. E., 573; S. v. Lawrence, 196 N. C., 562, 146 S. E., 795; S. v. Dickerson, 189 N. C., 327, 127 S. E., 256. Exceptions 2 and 3 question tbe competency of tbe police officer’s testimony tbat be did not think it worth while to investigate tbe claim of defendant tbat be bad relatives in Greensboro. It is not clear tbat defendant could have been prejudiced by tbe statement.

Exceptions 5 and 6 are to tbe identification of tbe written “notice” or guaranty by tbe Navy Housing office of two weeks rent at tbe Dale Dormitories, and its introduction in evidence. Tbe objection is both to its relevancy, and to its use as having been taken from defendant on a personal search, and thus compelling him to testify against himself. As to tbe manner of its acquisition and subsequent use in evidence, our Court has uniformly held tbat Article I, sec. 11, of tbe Constitution is not infringed by tbe introduction of evidence thus procured. Moreover, tbe defendant went upon tbe stand in bis own behalf and waived bis constitutional right against self-incrimination. S. v. Hickey, 198 N. C., 45, 48, 150 S. E., 615; S. v. Graham, 74 N. C., 646, 648. S. v. Hollingsworth, 191 N. C., 595, 132 S. E., 667, is distinguishable. In tbat case tbe defendant was required in open court and in the presence of tbe jury *73to band over to tbe State incriminating documents for use against bim in tbe trial. As to tbe relevancy of tbe paper, however minor it may be in probative force, we cannot say tbat it is devoid of any inference contradictory of defendant’s claim as to tbe amount of money be bad when be came to Norfolk, a matter of circumstantial importance in tbe case. See S. v. Payne, supra; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Wellman, 166 N. C., 354, 81 S. E., 745; S. v. White, 162 N. C., 615, 77 S. E., 999; S. v. Bruce, 106 N. C., 792, 11 S. E., 475.

In exception 8 tbe appellant complains tbat tbe trial judge misstated tbe testimony of a police officer in summing up tbe evidence. Tbe judge told tbe jury, in substance, tbat tbe defendant said be took tbe money “because be did not know bow mucb tbe man bad.” Passing tbe fact tbat tbis is a close approximation to tbe officer’s testimony, if it was an erroneous statement, it was such as to require tbat tbe attention of tbe judge should be called to it at tbe time for immediate correction, otherwise it would not be available on appeal. Tbis was not done. S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657; S. v. Hobbs, 216 N. C., 14, 3 S. E. (2d), 431.

Exception 9 assigns as error tbe fact tbat tbe judge, as a contention and not as a direct statement of law, instructed tbe jury tbat where tbe conduct of tbe defendant could be attributed to either of two motives, one innocent and tbe other criminal, tbe jury should take tbe more charitable view. S. v. Massey, 86 N. C., 660. Tbis was, of course, favorable to tbe defendant, but tbe court was not bound to give tbe instruction at all in tbe absence of a request. It was tbe privilege of tbe defense to ask for it if it was desired in different form. See S. v. Rogers, 166 N. C., 388, 390, 391, 81 S. E., 999.

Tbe last assignment of error, exception 10, points out tbat tbe court failed to state tbe law where circumstantial evidence is involved, and tbat tbe evidence here is predominantly of tbat character. Precisely in what tbe failure consists, we are left to surmise: We assume tbat it relates to tbe degree of circumstantial proof required to convict. Every now and then, through tbe force of precedent, definitions and interpretations of tbe more technical features of tbe law are newly included in tbe category of “musts” in explaining tbe law and applying it to tbe evidence under G. S., 1-180. Perhaps in extraordinary or unusual conditions tbat duty might arise with regard to circumstantial evidence, but no precedent is brought to our attention in tbe instant case. Tbe presence, use, and significance of circumstantial evidence in cases of tbis kind 'are commonly understood by all men, and there is danger tbat too mucb elaboration might have a tendency to confuse rather 'than aid tbe intellectual processes in reaching a reasonable verdict. In tbe present state of tbe law and practice, and upon tbe facts of tbis case, we think tbe duty *74of tbe trial court is fully implied in tbe following observation from S. v. Shook, 224 N. C., 728, 731, in whicb the Court quotes with approval from S. v. Adams, 138 N. C., 688, 50 S. E., 765:

“There is no particular formula by wbicb tbe Court must charge tbe jury upon tbe intensity of proof. ‘No set of words is required by tbe law in regard to tbe force of circumstantial evidence. All that tbe law requires is that tbe jury shall be clearly instructed, that unless after due consideration of tbe evidence they are “fully satisfied” or “entirely convinced” or “satisfied beyond a reasonable doubt” of tbe guilt of tbe defendant, it is their duty to acquit . . .’ ”

Tbe charge in tbe instant case met this requirement.

Upon tbe record we find

No error.