State v. Strickland

Seawell, J.

Two preliminary motions made by the defense demand attention: The motion for continuance; and the motion for a special venire. Both of these motions were in the sound discretion of the court. The first, according to the practice of the court, and the second by statute also, (a) S. v. Culberson, 228 N. C., 615, 46 S. E. (2d), 647; S. v. Rising, 223 N. C., 747, 28 S. E. (2d), 221; S. v. Utley, 223 N. C., 39, 25 S. E. (2d), 195; and (b) G. S., 9-29, G. S., 9-30; S. v. Casey, 212 N. C., 352, 193 S. E., 411; S. v. Levy, 187 N. C., 581, 122 S. E., 386. In neither instance is the action of the judge in denying the motion subject to review except upon abuse of discretion. The facts of record in the case at bar do not warrant such a finding.

The attempt at extortion opened up with the telephone call to Blake made by a person then unidentified. In the orderly development of the evidence Blake was permitted over defendant’s objection to give the substance of this call. lie testified that the party calling him told him there was a letter on his front door mat and said “Never mind” when asked who was calling; and when asked what it was all about, said, “Mr. Blake, the letter is very important; get it and follow instructions.” The objection to its admission is on the ground that the person talking was not identified as the defendant. The trial judge subsequently withdrew the conversation from consideration of the jury, leaving only the bare statement in evidence that the witness went to the front door in consequence of a telephone call and there found the letter on the mat. The appellant argues that the prejudicial effect of the admitted conversation was not cured by this withdrawal.

In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost *208a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. S. v. Davenport, 227 N. C., 475, 42 S. E. (2d), 686; S. v. Artis, 227 N. C., 371, 42 S. E. (2d), 409; S. v. King, 219 N. C., 667, 14 S. E. (2d), 803; 8 v. Stewart, 189 N. C., 340, 127 S. E., 260; S. v. Dickerson, 189 N. C., 327, 127 S. E., 256; S. v. Lunsford, 177 N. C., 117, 97 S. E., 682; S. v. Crane, 110 N. C., 530, 97 S. E., 682; S. v. McNair, 93 N. C., 628; S. v. Collins, 93 N. C., 564.

We think this rule should apply in the instant case. Moreover, we note here that the evidence thought to be objectionable was substantially put in evidence without objection by the witness Hartis (R., p. 28).

Indeed, it was competent as originally offered. We must bear in mind that the evidence to which the State must resort to convict the defendant is almost wholly circumstantial. The conversation bore internal evidence that the man who called knew about the letter and its contents and was interested in having Blake carry out the instructions; and the inference is that he wrote it and put it where he said it could be found, whoever the caller might be. In cases of this kind, as indeed all cases, the order in which the evidence is developed is within the discretion of the court. When subsequent evidence tended to show the defendant as the writer of the letter that order became immaterial; Stansbury, North Carolina Evidence, Sec. 24, Notes 61, 65; S. v. Smith, 218 N. C., 334, 11 S. E. (2d), 165; S. v. Guthrie, 145 N. C., 492, 59 S. E., 562; and the manner and circumstances of its delivery became competent, (a) S. v. Anderson, 228 N. C., 720; S. v. Gardner, 228 N. C., 567; S. v. Brown, 226 N. C., 681, 40 S. E. (2d), 34; S. v. Oxendine, 224 N. C., 825, 32 S. E. (2d), 648; (b) S. v. Smith, 218 N. C., 334, 11 S. E. (2d), 165; S. v. Alston, 210 N. C., 258, 186 S. E., 354; S. v. Brown, 204 N. C., 392, 168 S. E., 532; S. v. Dale, 218 N. C., 625, 12 S. E. (2d), 556.

■ The subject of admission of anti-phonal telephone conversations is too broad for detailed treatment here and we are compelled to keep discussion within narrow pertinent limitations. The broad statement that the conversation of a person at the other end is never admissible until he is identified cannot be sustained by authority. It is particularly inapplicable in prosecution for crimes in which secrecy, anonymity and concealed identity are always resorted to as a means of safe accomplishment, and proof is largely circumstantial, especially when the conversation merely forms a part of the res geslw and is offered objectively, as a part of the nefarious scheme. It is only necessary that identity of the person be shown directly or by circumstances somewhere in the development of the case, either then or later. People v. Micelli, 156 App. Div., 756, 142 N. Y. Supp., 102, 216 N. Y., 727, 111 N. E., 1094 (prosecution *209for kidnapping); State v. Twardus, 105 N. J. L., 254, 143 Atl., 920, 6 N. J. Mis. R., 193, 140 Atl., 317 (prosecution for conspiracy); 1 R. C. L., p. 447, 71 A. L. R., anno. p. 6; Stansbury, North Carolina Evidence, sec. 96; 11 N. C. L. R. 344.

The cases cited in appellant’s brief in support of the exception to the admission of this evidence may be easily distinguished from the case at bar. (a) Powers v. Service Co., 202 N. C., 13, because the conversation stood alone and unaided in its hurtful effect upon the defendant’s case, one of civil liability; Sanders v. Griffin, 191 N. C., 447, 451, 132 S. E., 157, because the conversation was offered to fix Sanders with the knowledge of the transfer of the note in litigation; in Griffin Mfg. Co. v. Bray, 193 N. C., 350, 137 S. E., 151, because there it was sought to bind Bray in a contract alleged to have been made in the phone conversation, which alone supported plaintiff’s case. See S. v. Gardner, 227 N. C., 37, 40 S. E. (2d), 415. Mfg. Co. v. Bray, supra, on which appellant mainly relies, is not at variance with this rule. Speaking for the Court, Justice Brogden quotes with approval from Atlantic Coast Realty Co. v. Robertson, 135 Va., 247, “. . . the identity of the other party to the conversation may be established by direct or circumstantial evidence.” Lumber Co. v. Askew, 185 N. C. 87, 116 S. E. 93.

As we have stated, supra, authorities are uniform in holding that the order in which proof may be presented is within the discretion of the court.

On our view of the case, however, the question becomes academic in view of the withdrawal of the offending matter.

The objections to the expert opinion testimony of C. W. Brittain, of the Federal Bureau of Investigation, are not tenable in view of the fact that- he was found by the court to be an expert in the matters to which he testified, and the evidence does not disclose to the contrary. The qualification of the witness, imprimis, is a matter for the court, and the character of the testimony given here bears favorably on the discretion exercised by the court as to his qualification. S. v. Smith, 223 N. C., 457, 27 S. E. (2d), 114; S. v. Smoak, 213 N. C., 79, 195 S. E., 72; S. v. Gray, 180 N. G. 697, 104 S. E., 647.

On the demurrer to the evidence and motions to nonsuit, appellant’s counsel strongly attack the circumstantial evidence upon which the defendant was convicted and urge also that there is error in the instruction which the judge gave the jury as to the character and effect of such evidence. After having instructed the jury that “circumstantial evidence is not sufficient to justify a conviction if the circumstances are simply consistent with the theory of innocence or guilt; they must be inconsist*210ent with every reasonable theory and hypothesis except that of guilt,” the judge proceeded to charge the jury as follows:

“The Court charges you that circumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth but that it is essential and highly satisfactory in matters of gravest moment. The facts, their relations, the combinations, connections, should be natural, reasonable, clear and satisfactory; when such evidence is relied upon for conviction it should be clear, convincing in its connections and combinations and should exclude all reasonable doubt of the defendant’s guilt. In passing upon such evidence it is your duty to consider all the circumstances relied upon to convict, along with the direct evidence that has been offered in the case; that is to say, if the State produces a witness here and a witness there and offers evidence here and evidence there, you first determine in your mind the particular circumstance to which it relates has been established beyond a reasonable doubt and unless you so find you will not consider it any further, but if you do so find, then you take that circumstance which you find to be established beyond a reasonable doubt in connection with any and all other circumstances which you may find likewise established beyond a reasonable doubt and in the direct evidence offered by the State and put them all together and then if upon that consideration of the evidence as a whole you are satisfied beyond a reasonable doubt of the guilt of the defendant, it is your duty to return a verdict of guilty.”

The challenged passage from the charge is entirely consistent with the opinions of this Court giving definitions, illustrations, and analyses of circumstantial evidence, and cannot be held for error. S. v. Ewing, 227 N. C., 535, 42 S. E. (2d), 676; S. v. Gardner, 226 N. C., 310, 37 S. E. (2d), 913; S. v. Kiger, 115 N. C., 746, 751, 20 S. E., 456; S. v. Carmon, 145 N. C., 481, 483, 59 S. E., 657; S. v. Vaughn, 129 N. C., 502, 39 S. E., 629; Wigmore on Evidence, 3d Ed., Vol. 9, sec. 2497, p. 316; Wharton’s Criminal Evidence, Vol. 2, sec. 922, p. 1608; S. v. McLeod, 196 N. C., 542, 544, 146 S. E., 409; S. v. Lee, 213 N. C., 319, 195 S. E., 785; S. v. King, 162 N. C., 580, 77 S. E., 301; S. v. Griffith, 185 N. C., 756, 117 S. E., 586; S. v. Casey, 201 N. C., 185, 159 S. E., 337.

We can only reiterate the often repeated statement that the language used by the Court, varied as it may be in phraseology, to illustrate the force and effect of circumstantial evidence as an instrument of proof, is not intended to modify the degree or intensity of proof necessary to conviction. Circumstantial evidence, direct evidence, or a mixture of *211both, must induce conviction beyond a reasonable doubt, before the accused may be found guilty.

Exceptions not here discussed have nevertheless been examined and do not merit a retrial of the case. No novel proposition of law is involved and we refrain from detailed discussion.

The evidence here is abundant to support the verdict, and the defendant’s motion for nonsuit was properly declined.

We find

No error.