State v. Knight, 261 N.C. 17 (1964)

Jan. 17, 1964 · Supreme Court of North Carolina
261 N.C. 17


(Filed 17 January 1964.)

1. Indictment and Warrant § 8—

An indictment may jointly charge two -defendants with non-burglarious breaking- and -entry, with. larceny, -and with receiving, since the offenses •may be committed by more .than one person .at tibe same time.

3. Same—

An -indictment may join a count -of breaking and entry with -a count of larceny and a 'count -of receiving.

3. Burglary and Unlawful Breakings § 3.1—

An indictment charging the non-burglarious breaking and entry of a 'certain store, shop, warehouse, dwelling, ¡house and building occupied by a named person'-is -not subject to. quaslhal for failure to inform defendants of the -type of structure they are charged wiltih -breaking into, defendant’s remedy being by motion for a bill of particulars if they desire more specific information to formulate their defense. GJS. 15-143.

4. ¡Criminal Caw § 3.4—

Testimony that some four months prior to the ■ larceny of - the safe as charged in the itoili of indictment, one of -defendants stated that drawings of the working parts of a safe shown,to him by the .witness/hekmgéd to *18defendant, that tue had memorized them and that if he ever robbed another safe it would be a big one, held competent against such defendant in connection with 'the other evidence adduced by the State tending to show that such defendant’s animus continued to and through the date of the offense charged and naturally included the commission of such offense.

5. Criminal Law § 90—

Upon a joint indictment of two defendants, evidence fending to incriminate one of the defendants is properly admitted when its admission is restricted by the court exclusively to1 such defendant alone.

6. Burglary and Unlawful Breakings § 1—

.There is a sufficient breaking where a person enters a building with a felonious intent by unlocking a door with a key.

7. Larceny § 6—

Upon the prosecution of two defendíante jointly for larceny, evidence tending to show that each defendant .possessed a quantity of the stolen money shortly after the commission of the -theft is competent respectively against each.

8. Burglary and Unlawful Breakings § 4; Larceny § 7— Evidence

of defendants’ guilt of unlawful entry and larceny held for jury.

Evidence tending to show that a car borrowed by defendants in another municipality was seen several days before the commission of the cíame in front of ‘the house that was robbed, that two men, one identified as one defendant and the other whoi appeared to be about tbe same size and age .as the other defendant, were seen a few horn’s before the offense was committed in front of the house, .that 'the house wias unlawfully entered and a quantity of money was taken from a safe kept therein, and that a day or two ‘after the offense each defendant had in his possession large amounts /of money, which money was identified iby its- musty smell as m-oney taken from -the safe in question, is held sufficient to1 be submitted to the jury as to each defendant on charges of both non-burglarious breaking and entry and larceny.

9. Criminal Law §§ 67 83, 97—

During the examination of the prosecuting witness defendants have the right to have the witness identify a television recording for the purpose of establishing their right to later introduce the recording in evidence, if they should so elect, but defendants are not entitled to introduce the television recording in its ¡entirety on cross-examination while the ‘State is putting on its evidence, and when defendants are .allowed -to put the entire recording in evidence without objection, the defendants are putting on -evidence so as to entitle ithe -State to the ¡opening and closing arguments to the jury.

10. Jury § 4—

,In ¡a prosecution -of ¡two defendants jointly for offenses less than capital, the State is entitled to challenge peremptorily four jurors for each defendant. GjS. 15-164.

Bobbitt, J., dissenting in part.

*19Appeal by defendant from Shaw, J., 10 June 1963 Regular Criminal Session, oif ROCKINGHAM.

Criminal prosecution 'on a three-count indictment charging the defendants with (1) .non-iburglariously breaking anid entry, (2) larceny of a metal safe, of $75,000 in U. S. currency, .and of ¡stock and saouri-tiasof the value of $100,000, and (3) receiving.

Before defendants .pleaded, the prosecuting ¡officer for .the State ¡announced in open court that he was putting the defendants ¡on trial on the first two counts in .the indictment ¡and not ¡on ¡tibe third ¡count charging receiving. Each defendant pleaded not .guilty. The jury returned a verdict that ¡each defendant wais guilty as charged in the first two counts in the indictment.

From ¡a judgment that Gene Knight be imprisoned for .a term of ten years ¡on his ¡conviction on .the first ¡count in the indictment and for a term .of five years ¡on 'his conviction ¡on the ¡second count in the indictment, the sentence on the second count to begin .at the expiration of the sentence on the first ¡count, ¡and from a .similar judgment against J.oe Watkins, each defendant appeals.

Attorney General T. W. Bruton and Deputy Attorney General Harry W. McGalliard for the State.

Robert S. Cahoon and J. Owen Lindley for defendant appellants.

Parker, J.

Defendants assign ¡as error the denial of their motion to quash the indictment, made in apt time before pleading to the indictment. They ¡contend the indictment ¡should be quashed for the following reasons: One, it is improper to charge them jointly in one indictment; two, the three ¡counts of a non-iburglariously breaking and entry, ¡of larceny ¡and of receiving are conflicting ¡and broadside ¡and improperly joined; and three, that the first ©aunt charges them .with a non-iburglariously breaking and entry into “a certain storehouse, shop, warehouse, dwelling house and building occupied by one Dr. C. W. McAnally,” etc., which does not .give them any specific information ¡as to the type of structure they -are ¡charged with breaking into. This ¡assignment of ¡error is without merit.

“When ¡an ¡offense is one which may be ¡committed iby more than one person at the ¡same time, the .several persons engaged in its ¡commission may ¡be jointly charged.’.’ 42 C.J.S., Indictments and Informations, sec. 159, a, p. 1106.

In S. v. Mincher, 178 N.C. 698, 100 S.E. 339, the Ctourt said: “It has bean the uniform .practice in this State to jodan a count for larceny with one for receivingin ¡one indictment, ¡and this has been repeatedly *20approved'.” It is /alteo proper to jpia ,-a court for; a noai-burgla-riously breaking -and entry with one for larceny at .the same time and with one for receiving at tflie same time in one indictment .in order to- meet the evidence which may possibly b.e -adduced .at the trial, and this has ibeem itihe midform .practice in this State; The three counts in the indictment correctly the usual form.-all the essential elements of the three offenses charged.

The first count charging -a non-buiglariously breaking and entry charges the breaking and entry into, certain buildings specified in G.S. 14-54, which creates- the offense. The first commit in the indictment charges .all the essential ingredients of the offense created by G.S. 14-54, and is good. Where .an indictment correctly charge® all the essential -elements of the offense, 'but' is not as definite .as the defendant may desire for his better -defense, hi® remedy -is by a motion for a bill oif'p-ariticu'lars, G.S. 15-143, and not. by a -motion to quash. S. v. Everhardt, 203 N.C. 610, 166 S.E. 738. When a bill -of particular® is furnished, it limits the -evidence to the transactions -or items therein stated. S. v. Williams, 211 N.C. 569, 190 S.E. 898.

The next question for decision is whether the State’s evidence survives each defendant’-s motion for judgment.-of nonsuit, -and suffices- to carry the case to the jury against both defendants or -any one of them on the first -two counts -in -the indictment -or either of them.

The State’s evidence, considered in the -light most favorable to it, presents these facts:

Dr. C. W. MoAnally, -a practicing dentist for 40 years, lives in his own home in the town of Madison. About 25 -or 30 yeans before 17 January 1963, he 'bought a metal safe, which he- has had -in his house s-inc-e then. On 17 January 1963 this safe -wais located in a oloiset -adj oiming his bedroom, and he- had in -it bonds, stocks, insurance papers and $75,000 in U. S. money, ail his property. This money consisted of hundred 'dollar bills, fifty dollar bills, twenty dollar bills, and a lesser number of five -dolla-r bills.,Some of that money was Series 1937; a large p-art of it was Series 1950. From time to- time he went through his securities and money in the. safe. He got some .stock -out the morning of 17 January 1963. This money, by rqas-on -o-f being kept for years in bis safe, had a. moldy, stinky odor.

He is a widower and lives alone. On 17 January 1963 his maid was off. Omrtihat day he went home for lunch about 11.:40 a.m. He kept the key to his front dona” in .a little wicker basket on the right-hand side when -one enters the front door. He até lunidh iff his- kitchen. He then went into- -his.'bedroom and salt down,in a chair. His house iis surrounded by a fence. Between his fence and the street there'is a tree. Looking *21through his window in his, bedroom, he isaw standing on the sidewalk behind (this .tree a man he had never seen before. He watched him about ¡thirty minutes. During this time thiis man moved once or twice to a little fill .adjoining the sidewalk -and ¡was watching 'his house. About 12:5-5 p.m. he came out of his front door, lacked it, put his key in the wicker basket, and started to. 'his office. As he .came out of his house, this man, whom he identified at the .trial as defendant Gene Knight, looked -at him, and he looked at this man. Then Gene Knight walked across the street to another man standing on Tuttle’s Chevrolet lot, whom he had seen f.roan the window of his bedroom standing ¡there fifteen or twenty minutes. This man- standing on the Chevrolet lot appeared about the same .size and age as the defendant .Joe Watkins.

He returned home about 5:00 p.m. His front door -and the back door were unlocked. The wicker basket and the front .door key were lying in ■the hallway. He went to the closet adj o-ining hie bedroom, and his safe and all its contents were gone.

On 10 -or 12 January 1963 John J. McCaiskill, who lives in Greensboro, North Carolina, loaned his automobile, a 1956 .two-door, two-tone Mercury sedan, to. defendants. Between 9 and 10 p.m. on 18 January 1963 Joe Watkins, hie first wife Ruby Dunn and her sister Bobbie Dunn, and .a man whose name is not stated in the evidence, went to Salisbury, North Carolina, in Watkins’ automobile. There Bobbie Dunn got in a 1956 Mercury sed-an, ¡drove it back to Greensboro, and parked it where Watkins showed .her to park it, -which was in front of where John J. lives. The next morning MioCaiskill found hi,s ¡automobile parked in front of his home. It then had a dent in it from the left front -door to the ¡back panel. Later Watkins told ¡him 'he had had an accident with the automobile and gave him three hundred dollars in twenty dollar bills saying that -ought to take care of the damage. He ¡spent two hundred dollars of this money and turned one hundred ¡dollars of it -over to- the ¡State Bureau of Investigation. The State introduced .this hundred -dollars in evidence. Dr. Mc-Anally examined and smelled the five ¡twenty dollar bills and testified he could identify it.

A few days .before 17 January 1963 two men in Madison saw around 10 or 11 a.m. a .two-tone ¡automobile with a raashed-in ¡side around the left front dloor parked in the street near Dr. McAnially-is home. Two or three men were in it.

On the -afternoon -of 14 January 1963 the -defendants -and another man brought, -or had -pulled, a 1956 two-tone Mercury automobile into an automobile repair -shop in the town of Randleman. They stayed ■there about an hour while James Brown; the .’foreman, fixed the starter.

*22Between 5 and 6 p.m. on 18 January 1963 Joe Watkins went to. the home of his sister Mns. Martha Baynes in Greensboro'. He gave his sister $320 in money and told her .to send money .orders with it. He also left a suitcase with her. When. Watkins left, his sister opened the suitcase and found in it a .pillowmse looped at the top- full of money. She immediately shut the suitcase and ©ailed her huisband and her father. They called police officers in Greensboro and turned over to them the suitcase and its contents. In the pillowiease wais $15,570 in paper money; it was straight or folded, had a musty emelll and stunk, and a lot of it was Series 1928-1934. The odor from the paper money was so bad Mr/s. Baynes /sprayed her bedroom with an air-room deodorizer. This $15,570 was .introduced in evidence .by the State. Dr. McAnally examined it in detail, ismelled it, and testified that this money, by reason -oif its od'or, wais his and was in his safe on 17 January 1963.

One Mary Ann Daye had her automobile financed by the Scottish Bamik in Salisbury, North Carolina. On 18 January 1963 she 'and Joe Watkins came in the bank together, and she paid off the loan in money 'and 'assigned the title to Joe Thomas Watkins. Joe Watkins /signed the icertificate of title as purchaser in tire bank. A certified copy of the 'certificate of title from the Department of Motor Vehicles was imfrodiuoad in evidence. G.S. 20-42. This shows the bank released its lien on 18 January 1963, though the record on page 76 shows the loan wais -paid off 18 January 1962, which it seems manifest is a typographical error.

About 5:15 am. on 19 January 1963 two. members of the military police stationed at Fort Bragg stopped an automobile on Highway 87, because it was “weaving” in the road and ran through a red traffic ■light. The drived’, Joe Watkins, was 'drunk. In the automobile with 'him was his former wife Ruby Dunn. They carried- him to the Military Police -Station. Watkins had on his person $1,198, of which $1,180 was in ¡twenty dollar bills. These bills were .straight and had a musty smell, and were mildewed. Watkins had a hearing before C. W. Jack-ison, U. S. Commissioner, who .put him under a bond of $300 to- appear in U. S. District Count. Watkins gave the .commissioner as ¡bail fifteen twenty dollar bills. The commissioner testified, “there was a distinct odor of mustiness, an unpleasant odor to the money.” The commissioner later turned over this $300 in money -to 'an. officer of the State Bureau oif Investigation. This money was introduced in evidence by the State. Dr. McAnally examined it, smelled it, and testified that this money, by reason of its odor, was in his safe on 17 January 1963.

On the 'afternoon of 18 January 1963 Joe Watkins1 went to the home of his first wife Ruby Dunn and left with her a shoe box, supposedly *23containing clothes for dry -cleaning. Later a police officer of Greensboro mane to ber borne, and site turned this box over to him. He opened the shoe 'box, and it contained $335 -in money, moist of it in twenty dollar bills. The State introduced this money in evidence. Dr. McAnally examined it, smelled it, and testified that it w¡as in his safe on 17 January 1963.

On ¡the afternoon of 18 January 1963 Gene Knight bought a secondhand Chevrolet automobile from I. M. Leonard, a second-hand car dealer in Lexington, North Carolina. He paid Leonard $2,100 in twenty dollar bills for this automobile. He had this money in a white envelope in an inside pocket. The next morning Leonard deposited this money, and an additional $105 in money and a $425 check, in a local bank, where it wais received by Mrs. Jaunita Craver, a teller -in the bank. Mrs. Graver testified, “I noticed about the money when I took in the deposit, it had a foul odor. It was kind of a pack-away smell, musty.” About .a week later Mrs. Graver' turned over $920 of this foul-ismell-ing money to Paul Oase, -chief oif police of Madison. The State offered this $920 in evidence. Dr. McAnally examined this money, smelled it, and testified it was in his safe on 17 January 1963.

Paul Oase and William H. Jackson, a -captain of the Greensboro police department, on 21 January 1963 brought Gene Knight from Charlotte to -Greensboro, and he was later carried to- the Rockingham County jail. On the way from Charlotte to Greensboro they passed a road sign -bearing the name Madison, and Gene Knight said, “There’s one damn sign that I .wish I had never seen.” On -one occasion Knight asked Paul Oase, “Where -did- you run across my name in- Madison?” ¡and further sai-d: “He could name three SOB’s and one of them would be it. * * * if you malee a good score, they get j ealo-us. * * * -he had not been -in M-aidison since 1952.”

John V-anderfo-nd, -a -special a-gent -with the State Bureau o-f Investigation, testified he talked with Gene Knight on 15 September 1962 in Lincoln County. Defendants obj acted to- anything -that wias said or done on this occasion. The State announced it was offering it only against Gene Knight. The court overruled Knight’s objection and instructed the jury that the -evidence wais competent -against Knight, admitted it against Gene Knight -alone -and not against Joe Watkins, and the jury should so -consider it. Vianderf-ord testified in substance that he had with him some eight -drawings o-f the working -parts of -safes, and that he sho-wed them to Knight. That Knight told him these drawings “belonged to him, -and that he knew I was going to- keep them, but that he had memorized them and it -didn’t make any difference * * * that if he ever robbed -another -safe, it would be just one big -one.” Over de*24f-endant’s abjection the court permitted the Sítate to. introduce these drawings in evidence. In overruling tire objection, the court instructed the jury that .these exhibits were admitted in evidence against Knight land not against Watkins, and the jury should so consider them. To- all these rulings defendants objected, excepted, and assign, .them as error.

Tire closest case in point that we have found is Commonwealth v. Corkery, 175 Mass. 460, 56 N.E. 711. Corkeiy w-as indicted for tire larceny of numerous milk cans from various owners. From a judgment of conviction he appealed. He took an -exception to the admission in evidence of a conversation of his in February 1899, with a fellow servant, one Conl-on, to the effect that if Oonlom was short of caos, he could go out land steal them, -and that, if Oonlon did not do- it, there were others that could do it. In -overruling the exception, the Court said:

“The cans in question were shown- to- -belong to the alleged owners, and were .found in the defendant's custody, under suspicious -circumstances, not necessary -to be detailed. The defendant testified that they were put where they were found -about tire 1st of May. Evidence of his -animus in February, in connection with other circumstances o-f suspicion, w-a-s not too remote. Remoteness depends a -good ideal on the nature of the -case. If the remark was found to -have been made -seriously, it showed that, less -than three months before the -cans were traced to hie -possession-, the defendant contemplated with complacency the crime with which he was -charged. I-t co-uld not be presumed by the judge that he had experienced a'-cbahge of heart in the meantime.”

In S. v. Ham, 224 N.C. 128, 29 S.E. 2d 449, on a trial upon an indictment for robbery from -the -person of a woman, evidence that one of defendants was heard in effect to say eo-me time before the alleged robbery .was committed, in a conversation relative -to other robberies in the community, that -he knew -am old woman who- kept money under her dress, was held competent. The Court -said:

“This evidence was competent as tending to show that the defendant Ham knew the prosecutrix had money and kept it under her dress, o-f w-hioh money she was subsequently robbed. This was •a eircomstaauce, which standing -alone may not have had any potency, but when considered in connection with -all the other circumstances appearing in the evidence may -not have been entirely feckless. In criminal cases every circumstance -calculated to throw iany light upon the supposed crime i-s permissible.”

■ The statement -of - Knight to the -effect -that the eight drawings of the working -parts of safes shown -him by John Vanderf-ord were -hi-s, that *25Dae Lad memorized-them, and that if 'he.ever .robbed. another safe it would be just one big one,. made a little over four months, according to the S-tafe’s evidence,, before-Dr. MoAnally !s‘:®aife Vais stolen, and the evidence that some of -the money therein was traced to- Knight's possession, dhow that Knight .“contemplated .with complacency the crime with which he is icharged” here.-The evidence of .Knight’s animus on 15 September 1962, in connection with-the other evidence -adduced by the 'State against him, tends .to show that sucih animus continued to and through 17 January 1963, and naturally included the commission o-f the offenses -charged i-n the first -and second counts- in the indictment.. This evidence was competent against Knight. /It was not admitted against Watkins. Defendants’ assignment o-f erro-r. to the admission' o-f this evidence is overruled.

In respect to the money which the State’s evidence tends to- show belonged to Dr. M.cAnally and was in Watkins’ possession a day or ■tw.o after 17 January 1963, the -court -carefully instructed the jury that this evidence was admitted against Watkins alone" -and not against. Knight, and the jury 'should -so -consider it. In respect -to the State’s evidence tending to sho-w Knight -purchased a second-hand automobile -from I. M. Leonard on 18 Jianu-ary 1963, his payment, of $2,100 for it in- twenty d-ollar bills whi-ch had -a f-o-ul odor, and -the identification o-f $920 of -this money as being in his safe on 17 January 1963 by Dr. MoAnal-ly, the court carefully instructed the jury that this evidence was admitted against Knight alone -and not against W-atkins, and the jury should so consider it.

Dr. McAniallyis testimony ils to- the effect that about 12:55' p,m. he came out of his front door, locked it, put his key in the wicker basket, and went -to his office. When he returned home about 5 -p.m., his front ■door and -back door were unlocked, .and the wicker basket and the front door key were lying in the hallway. This evidence permits a reasonable inference that an .entry -was made into Dr. McAnia-lly’s house by unlocking the .front door with his key, which w-as in the wicker basket. There is a -sufficient breaking where .a person enters a building with a ■felonious intent by unlocking -a door with a key. Creel v. State, 23 Ala. App. 241, 124 So. 507, reh. den. 25 June 1929, cert. den. 220 Ala. 220, 124 So. 510; S. v. Wurtz, Mo., 11 S.W. 2d 1029; Hawkins v. Com., 284 Ky. 33, 143 S.W. 2d 853; Rippey v. State, 86 Tex. Crim. 539, 219 S.W. 463; McGilveray v. State, 111 Tex. Crim. 256, 12 S.W. 2d 585; 12 C.J.S., Burglary, sec. 3, p. 670. See S. v. Best, 232 N.C. 575, 61 S.E. 2d 612.

The State’s evidence, considered in .the light most favorable to it, tends to show that defendant Knight -and a man who', appeared about *26tibe same size and age as 'defendant Watkins were in front of Dr. Mc-Anally’s home on 17 January 1963 -for fifteen or twenty minute© or more, 'and that a short time thereafter — some one or two or three hour©' — Dr. McAnally’s boose w-as entered by uniloicking the front door with a key and his safe .and its contents stolen. A day or two later each defendant .bad in ihis .possession large 'amounts of money, which the State’s evidence tends to ©how belonged to Dr. MicAnally and were in his safe wben it was stolen on 17 January 1963. The Court said in S. v. Best, supra: “Then, too, the defendant’s possession of the fruits of the crime recently after its commission justified the inference of guilt on his trial for .larceny.” The State’s evidence, considered in the light moist favorable to: it, further .tends to ©ho.w that on 10 or 12 January 1963 John J. MicOaskill loaned 'his automobile, a 1956 two-door, two-tone Mercury sedan, to defendants; that a few days 'before 17 January 1963 two men 'in Madison around 10 or 11 a.m. saw a two-tone automobile with a mashed-in side around the left front door .parked dn the .street near Dr. MoAnally’s house and that two or three men were in it; that during the night of 18 January 1963 Bobbie Dunn, acting under the direction of the defendant Watkins, parked MeOaskill’s automobile in front of where he lives'; that the next morning MoCaskill found his automobile parked in front of Ihiis house', .and it had a dent in it from the left front door to. the .back panel. Latea* Watkins told him he had an accident with the automobile and gave him $300 in twenty dollar bills to pay for the damage. MoCaskill spent $200 of this money and turned $100 of it over to the State Bureau of Investigation. The State introduced this $100 in evidence, and Dr. McAnally examined it, smelled it, and testified he could identify it. There is 'ample evidence adduced by the State to carry the case .to the jury against both defendants on the first two. counts -in the indictment, .and the court properly overruled their separate 'motions for judgment of nonsuit.

On cross-examination of Dr. McAnally by defendants’ counsel, he testified in effect: A lot of tire -money ¡he had 'in his safe, when it was stolen, was Series 1950 money. He made ia statement in his office about ¡his money in his safe, when it was stolen, and it was recorded by the television people. It went on television, .and he saw it. He thinks he would recognize himself -in that picture on television. He never made the statement that nothing had been put in his safe in the last 25 years. The record shows defendants’ counsel asked this question: “Would you come and set -that up, please, sir? I want to see if you recognize your statement.” Apparently defendants’ counsel asked someone to set up a television screen and show or play toe recording to see if Dr. McAnally would identify the statement recorded as his own. The *27State obj acted to the showing of the recording, mole® defendíante wanted to put it ©mas their -evidence. Defendants’ counsel said in effect he just wanted Dr. M-eAn-ally to say as to whether that is hie voice and his statement; he wanted to put the statement in on cross-examination, 'and cross-examine him about it. The court ruled that whan defendants put this statement in evidence, they were putting on evidence. Defendants excepted -and assign this as error.

When the State closed its ease, defendants called. Dr. McAnally, as the record states, “for further cross-examination.” The Court stated that it holds defendants are now putting on their own evidence. Defendants excepted -and assign this as error. Dr. McAnally took the witness stand, the television recording was shown in its entirety without any abjection on .the part of the State, and he observed it. This is the television recording:

“Q (By the interviewer) Dr. McAnally, when did the burglary occur?
“A We think it occurred -between- 2:30 and 3:30.
“Q What day?
“A Thursday.
“Q And how did you discover it?
“A When I went home .from the office approximately 4:55, my -door was generally locked. The key was not where I generally kept it. I turned the knolb, the door wais unlocked ¡and the key and the container was laying in- the hallway in front of the door. I immediately walked back to my back door 'and it was unlocked. My back -gate was wide open and naturally I supposed something should have or -could have happened to this safe -and I walked in to see and -it was gone. .:
“Q Ho-w much money was stolen?
“A Approximately $75,000.00.
“Q Were there -any other securities or bonds?
“A $25,000 or $35,000 in Government bonds.
“Q H-ave you made an accurate estimate of how much was in .the safe since your robbery?
“A No, I have not.
“Q Has it .always been your -custom to keep large amounts of cash on hand?
“A This -amount of money and -these bonds have been in that location for 25 or 35 years. There h-ais not been anything new p-lac*28,ed in that ©afein. that length of timé. The money that I have made in the past 25 or 30 yeans has been placed -in hanks, Building & .¡Loam, on some type of investment.
.' “Q Will you'keep this large -amount of money in the future in your safe?
“A I will not'-keep $1500.'00 in' my safe fnom now ion. I w-on’t have a safe.
“Q In other words, you have learned your lesson?
“A Yes, sir, the hard way.”

When- the showing of the television recording ended, Dr. McAmally said: “That was me. That’s my statement. To- this extent. I did not place -any money in there. My wife placed money in there the past ten or fifteen years.” The record shows further cross-examination of Dr. MoAnally by defendants’ counsel. ■

When- Dr. MoAnally left the witness -stand, the court ruled that defendants ,by introducing in -evidence the television recording had put on evidence, and the State was entitled to open and .’conclude the arguments to the jury. To this ruling, defendants excepted and assign this as error.

In 1963 Cumulative Supplement to*'20 Am. Jur., sec.’ 258, pp. 45-6, it is said: “Sounds are most commonly recorded on discs, wire, tape, or sound motion-picture film, and reproduced 'by various devices such as the phonograph, dictaphone, -or sound projector. Usually the recording is effected by an electrical or electro-magnetic process. * ‘:i * Sound recordings which are .shown to be .accurate are admissible for purposes of impeachment, to present statements by witnesses or parties contradicting their trial testimony * See Annotations 58 A.L.R. 2d 1024, Admissibility of -sound recordings in evidence, particularly sec. 15, .and 168 A.L.R. 927; and also S. v. Walker, 251 N.C. 465, 112 S.E. 2d 61, use of a tape recorder. See also 20 Am. Jur., Evidence, sec. 738, in respect to the admissibility of motion pictures as evidence.

In State v. Porter, 125 Mont. 503, 242 P. 2d 984, which was a prosecution for .embracery, a failure to- permit the defendant to introduce three recordings to impeach the credibility of certain prosecuting witnesses by showing -that they had made prior -contradictory statements different from .those sworn to on their direct examination was held error.

In Com. v. Clark, 123 Pa. Super. 277, at p. 285, 187 A. 237, at p. 240, the Court said:

“* * x The-phonograph, the dictaphone, the talking motion picture machine, and similar recording -devices, -with reproducing ap-*29parata, are maw in such common use that the verity of their recording and reproducing sounds, including those made by the human voice in conversation, is well established; and as advances in such matters of isciemitifie research and discovery .are made and generally adopted, the courts will be permitted to make use of .them by way of presenting evidentiary facts to' the jury.”

This was quoted with approval in Com. v. Hart, 403 Pa. 652, 170 A. 2d 850.

Defendants were within their rights in asking Dr. McAnally on cross-examination if he had not made a certain statement to the effect that nothing had. been put in hiis safe in the last 25 years, which statement was inconsistent with, or contradictory to., /his 'testimony in .the ■trial that a lot of that money that he claimed was in the safe was Series I960 money. S. v. DeGraffenreid, 223 N.C. 461, 27 S.E. 2d 130; 98 C.J.S., Witnesses, sec. 596. When Dr. McAnially denied making su,ch a statement in respect to (tlhe .subject matter .about which be was being examined, the defendants bad a right to introduce in evidence a. television statement made iby him inconsistent with, or contradictory to., his testimony in the trial in order to impeach him, provided a proper foundation was laid for the admission of such television recording by proof of its laccuracy and of its being made by Dr. McAnally. S. v. Patterson, 24 N.C. 346; S. v. Wellmon, 222 N.C. 215, 22 S.E. 2d 437; Smith v. Telegraph Co., 168 N.C. 515, 84 S.E. 796; 98 C.J.S., Witnesses, sec. 573, sec. 598 et seq.

The -record plainly ©hows that the court did not limit defendants’ cross-examination of Dr. McAnally, while he was a State’s witness and before the State closed -its case, in respect to prior inconsistent or contradictory statements made by him. It further show© that defendants’ counsel desired to have .the entire television recording shown or put in evidence, while he was cross-examining Dr. McAnally .as a State’s' witness and -before the State rested its case to. see -if Dr. McAnially recognized his statement. Defendants had .a right to have Dr. McAnally identify the television recording a© correct and made by himself in order that they could introduce it in evidence when their turn came to introduce evidence, if 'they so- desired, but -they had no- right to. -introduce the -television recording in its entirety on- cross-examination while the State wa© putting on evidence. However, the ruling of the court that d-efendants could not ©how or play the television recording to- Dr. McAnally on cross-examination, before the State rested its ease, to isee if he recognized his statement was not prejudicial to- defendants, because they -put or p-layed the entire television recording in evidence be-*30fare ¡the jury without any objection by the State, and had the full benefit of it, 'amid Dr. McAnaily testified after seeing it, “That was me. That’s my statement.” The court was 'correct in its ruling that when defendants put this television recording in evidence, they- were putting <on evidence, -and -consequently the State was entitled, to- the-, opening and closing 'argument's to tlh-e jury. As to opening and closing arguments in -a 'criminal -case, see S. v. Smith, 237 N.C. 1, 23, 74 S.E. 2d 291, 306. Defendants’ assignments of -error 4 and 7 are based on exceptions relating to- the television recording as set forth above, and to- the court’s ruling ais to- argument of -counsel set forth -above, and are overruled.

Defendants assign as error the court’s- permitting the State to -challenge peremptorily a, fifth juror. This assignment io-f error is overruled. G.S. 15-164 provides that in -all criminal -cases -other than capital “a challenge -of -f-our jurors -.shall be allowed in -behalf of the State fox each defendant.” S. v. Levy, 187 N.C. 581, 584, 122 S.E. 386, 388, which speaks of C.S. 4634, which is identical with G.S. 15-164, with the sole exception- that more peremptory challenges are allowed iby G.S. 15-164.

An examination -of -defendants’ -other assignments of -error brought forward and discussed in their brief shows no- prejudicial error sufficient -to- warrant ia new trial.

All defendants’ -assignments of error aré overruled. In the trial below w-e find

No error.

Bobbitt, J.,

dissenting in part as to defendant Knight: In my opinion, the admission-over Knight’s objection of (1) Mr. Vanderford’s testimony as to what Knight said to him on September 15, 1962, and (2) of the -drawings referrad to- in this/testimony, was prejudicial error for which Knight is entitled to a new trial. This evidence tended to show that Knight, prior to- September 15, 1962, had studied the working parts of safes and had “robbed” one -or more safes and was the kind -of person you would siospect whenever there was a “robbery” of a safe.

The applicable rule is stated as follows: “Evidence of other offenses •is inadmissible if its only relevancy iis to- show the character of the accused- or his -disposition to commit an offense of the nature of the one -charged; but if it tends to prove .any other relevant fact it will not foe excluded -merely -because it also shows him to-.-have been guilty of an independent crime.” 'Stamisbury, North Carolina Evidence, Second Edition, § 91. In my opinion, the -general rule -controls here and the- evi-*31deuce should Lave been excluded. Here there is no question ¡ais to the animus of the person(s) who broke 'and entered Dr. MoAnal-ly’s home and carried away his safe and its contents.