STATE
v.
Allan BELL, Jr.
No. 266.
Supreme Court of North Carolina.
April 12, 1967.*742 *744 Atty. Gen. T. W. Bruton and Staff Atty. Andrew A. Venore, Jr., Raleigh, for the State.
Francis O. Clarkson, Jr., Charlotte, for defendant, appellant.
BRANCH, Justice.
Bill of indictment No. 48215 charges that:
"Allen Bell, Jr., late of the County of Mecklenburg on the 12th day of October, 1966, with force and arms at and in the County aforesaid, unlawfully, wilfully, and feloniously, having in his possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, to wit: A pistol whereby the life of Jean Rogers was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, rob, steal, 1 Timex watch, 1 high school pen, and 1 pair ear bobs, the property of Jean Rogers and carry away 1 brown purse, 1 blue billfold, 1 pair eye glasses, 1 citadel charm braclet to-wit: $60.00 of the value of less than $200 from the presence, person, place of business, and residence of Jean Rogers contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."
There is a fatal variance between the indictment and the proof on this record. The indictment in bill No. 48215 charges that "Jean" Rogers was the person robbed. The entire proof and the record is that the person robbed was "Susan" Rogers.
The defendant in a criminal action may raise the question of variance between the indictment and proof by a motion for nonsuit. State v. Overman, 257 N.C. 464, 125 S.E.2d 920; State v. Smith, 237 *745 N.C. 1, 74 S.E.2d 291. Here, defendant made motion for nonsuit at the close of the State's evidence and at the close of all the evidence. The motion for judgment of nonsuit should have been allowed as to the charge under this indictment, with leave to the solicitor to secure another bill of indictment if so advised. State v. Hicks, 233 N.C. 31, 62 S.E.2d 497; State v. Overman, supra.
This opinion will hereafter be directed to the trial on bill of indictment No. 48216, which charges defendant Allan Bell, Jr., with the felony of robbery with firearms of Frances Frazier.
Defendant assigns as error that the trial court erred in denying his motion for nonsuit. This is a case in which the State relies upon circumstantial evidence. To determine whether there is sufficient evidence to go to the jury we must consider the evidence in the light most favorable to the State, State v. Orr, 260 N.C. 177, 132 S.E.2d 334, and apply the rule enunciated in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, as follows:
"We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, 908, quoting from State v. Johnson, 199 N.C. 429, 154 S.E. 730: `"If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury."' The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury. (Citing cases.)"
It is recognized in this State that: "If and when it is established that a store has been broken into and entered and that merchandise has been stolen thereform, the recent possession of such stolen merchandise raises presumptions of fact that the possessor is guilty of the larceny and of the breaking and entering." State v. Allison, 265 N.C. 512, 144 S.E.2d 578. However,
"`The presumption that the possessor is the thief which arises from the possession of stolen goods is a presumption of fact and not of law, and is strong or weak as the time elapsing between the stealing of the goods and the finding of them in the possession of the defendant is short or long. This presumption is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the state has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt. The duty to offer such explanation of his possession as is sufficient to raise in the mind of the jury a reasonable doubt that he stole the property, or the burden of establishing a reasonable doubt as to his guilt, is not placed on the defendant, however recent the possession by him of the stolen goods may have been'. Schenck, J., in State v. Baker, 213 N.C. 524, 196 S.E. 829, 830." State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725.
*746 If there be substantial evidence of every essential element that goes to make up the offense charged, the case is for the jury.
A majority of the cases which have considered the doctrine of "recent possession" in this jurisdiction have been cases involving breaking, entering and larceny. However, we find no valid reason why the rule does not apply to property taken in a robbery with firearms in the same manner as property taken by breaking and entering.
"When a proper foundation has been laid, evidence that the property taken in the robbery in question was, or that the fruits thereof were, found in the possession of the accused shortly thereafter is admissible against him, in accordance with and subject to the rules governing the admissibility of evidence of the possession of the fruits of crime generally." 46 Am.Jur., Robbery, § 48, p. 160.
In the instant case a portion of the property taken in the armed robbery of Frances Frazier was found not more than 25 minutes after the robbery occurred in defendant's automobile, which was being operated by defendant from the direction where the armed robbery occurred. Defendant Bell was accompanied by James Johnson, the person identified by the victim Frances Frazier, as holding the gun on her and taking her property. A pistol of the same description given by the victim of the robbery as being used in the robbery was in plain sight in defendant's automobile. Applying the well established rules of law to the facts in this case, we hold that the evidence was sufficient to require submission to the jury and to support the verdict.
Appellant contends the trial judge erred in allowing testimony as to State's Exhibits 4, 5 and 6, which were obtained in the search of defendant's automobile, and in failing to find facts upon which the legal conclusion of the admissibility of this testimony was based.
When Officer Funderburk was testifying, defendant's attorney asked that he be allowed to qualify the officer out of the presence of the jury. Whereupon, the jury was excused and defendant's attorney cross-examined the officer at length. Both the State and defendant had opportunity to offer evidence showing the circumstances under which the search was made. Defendant offered no evidence. By overruling defendant's objection, the trial judge ruled the evidence admissible, and this ruling is supported by competent evidence.
When the trial court finds upon consideration of all the testimony offered on the preliminary inquiry that a confession was voluntarily made, his finding is not subject to review, if supported by competent evidence. State v. Hairston, 222 N.C. 455, 23 S.E.2d 885. While it is better practice for a judge on voir dire to make finding of fact and enter it in the record, a failure to do so is not fatal. The ruling that the evidence was competent was of necessity bottomed on the finding that the search was legal. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84.
The court fully granted defendant's requests concerning a voir dire. The fact that defendant offered no contradictory evidence further negated the necessity for the judge to find facts. We hold there was no prejudicial error in the court's failure to find facts in making its ruling.
We must, however, decide as a matter of law whether the circumstances of this case constitute an illegal search so as to prevent testimony relative to State's Exhibits 4, 5, and 6.
G.S. § 15-27.1 provides in part: "No facts discovered or evidence obtained by reason of the issuance of an illegal search warrant or without a legal search warrant in the course of any search, made under conditions requiring a search warrant, shall be competent as evidence in the trial of any action."
*747 "To render evidence incompetent under the foregoing section, it must have been obtained (1) `in the course of * * * search,' (2) `under conditions requiring a search warrant,' and (3) without a legal search warrant. The purpose of this and similar enactments (G.S. 15-27) was `to change the law of evidence in North Carolina, and not the substantive law as to what constitutes legal or illegal search.' Therefore a search that was legal without a warrant before these enactments is still legal, and evidence so obtained still competent. 30 N.C. Law Review 421. It will be noted that the statutes use the phrase `under conditions requiring a search warrant.' No search warrant is required where the officer `sees or has absolute personal knowledge' that there is intoxicating liquor in an automobile. State v. Giles, 254 N.C. 499, 119 S.E. 394; State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133. No search warrant is required where the owner or person in charge consents to the search. State v. McPeak, 243 N.C. 243, 90 S.E.2d 501." State v. Coffey, 255 N.C. 293, 121 S.E.2d 736.
If the search was incidental to the arrest of defendant, it was not illegal. Webster's Third New International Dictionary defines "incidental" as "subordinate, nonessential, or attendant in position or significance."
In State v. Haney, 263 N.C. 816, 140 S.E.2d 544, officers within twenty minutes of a lawful arrest searched the car in which defendant was at the time of the arrest. Holding the search lawful, the Court said:
"`As incident to a lawful arrest, the conveyance of the person arrested may be searched without a warrant. Accordingly, a search warrant is not necessary to authorize a search of an automobile in which a person was riding, or beside which he was standing, when arrested, and an officer, after arresting and incarcerating accused, may return and make a search of his automobile.' 79 C.J.S. Searches and Seizures § 67e (1952); Cf. State v. Giles, 254 N.C. 499, 119 S.E.2d 394."
A review of other jurisdictions shows that many of the cases turn on whether or not the officer had reasonable cause to arrest the defendant and as an incident to the arrest were entitled to search defendant's car. In the case of People v. Cantley, 163 Cal. App. 2d 762, 329 P.2d 993, police officers saw defendant stop his car in front of an apartment house and enter the house for about two or three minutes and upon his return he made a "U" turn to drive away. The officers stopped the car and saw him make a motion as if he were reaching under the front seat, and further observed that he met, to some extent, the description of a person wanted in connection with a robbery and murder. One of the officers flashed his light into the car and found a loaded revolver on the floorboard. The Court concluded that the officers acted reasonably in the light of the information they had received, and that they entertained a reasonable suspicion that defendant had committed a felony, and they had reasonable cause to arrest the defendant, and as an incident to the arrest they were entitled to search defendant's car.
In the case of State v. Brooks, 57 Wash.2d 422, 357 P.2d 735, officers saw an automobile with two occupants parked in a no-parking zone and stopped to investigate. Upon opening the door they saw some paper bags in the car with uncovered trousers protruding from them. The bags were opened and four new suits were found, with sales tags still upon them, whereupon the officers arrested the occupants. It was held that since it appeared from the record that the officers had sufficient cause to believe that a felony had been or was being committed, they had a right to arrest them without a warrant, and therefore the search of the paper bags and the seizure of the contents before the arrest of the occupants was lawful.
*748 In United States v. Sala, (1962, D.C.Pa.) 209 F. Supp. 956, it was held that a search without a warrant of a panel truck was legal, although it preceded the arrest of the driver, when officers making the search had probable cause therefor, by reason of facts and circumstances known to them, which would have warranted a prudent man to believe that a felony had been or was being committed in his presence.
In the present case, when the officers stopped the automobile fitting the description of the one used in conjunction with the robbery and observed the pistol on the seat of the automobile, they had reasonable ground to believe that defendant had committed a felony and would evade arrest if not taken into custody. G.S. § 15-41. The search and seizure were so closely related in time and circumstance to the arrest as to make the search and seizure reasonable. Under the circumstances, the officers would have been derelict had they not stopped the car for investigation. Upon observing the pistol in the automobile, the bounds of reasonableness were not overstepped by placing the defendant under arrest or by the attendant and incidental search of the automobile.
Moreover, it has been recognized in this jurisdiction that "`Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without a warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.'" State v. Giles, 254 N.C. 499, 119 S.E.2d 394.
There is competent evidence from the officers that the pistol and pocketbook were visible from the outside of the automobile and were fully disclosed and open to the eye without the necessity of search.
Defendant contends that the court erred in charging the jury that they could find the defendant guilty if they found he aided and abetted in the commission of armed robbery, because the indictment does not charge defendant with aiding and abetting.
A defendant may be tried and convicted as a principal where he either counsels, procures or commands another to commit a felony, as an accessory before the fact, G.S. § 14-5, or aids and abets in the commission of the crime, State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. He need not be actually present; he may be only constructively present. See State v. Sellers, 266 N.C. 734, 147 S.E.2d 225, where the Court states:
"`When two or more persons aid and abet each other in the commission of a crime, all are principals and equally guilty.' State v. Horner, 248 N.C. 342, 103 S.E.2d 694. The defendant not only collaborated with Yopp in planning and setting the stage for the robbery and in escaping with the stolen money, but also waited and watched, armed with a pistol, near enough to the scene to render aid if needed. Thus, he was constructively present when the robbery actually occurred and is guilty as a principal in the second degree."
G.S. § 14-87 provides:
"Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than five nor more than thirty years."
This statute creates no new offense. "It does not add to or subtract from the common *749 law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed." State v. Hare, 243 N.C. 262, 90 S.E.2d 550; State v. Stewart, 255 N.C. 571, 122 S.E.2d 355. Thus, it was not necessary for the bill of indictment to charge defendant with aiding and abetting, and the charge of the court was without error.
As to trial under Indictment No. 48215 Reversed.
As to trial under Indictment No. 48216 No Error.