STATE
v.
James Edward WILLIAMS.
No. 825.
Supreme Court of North Carolina.
February 3, 1967.*482 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.
Harry P. Horton, Pittsboro, and George M. McDermott, Sanford, for defendant appellant.
BOBBITT, Justice.
Defendant assigns as error the denial of his motion for judgment as of nonsuit, contending the State's evidence "at most raises mere suspicion and conjecture of (defendant's) guilt."
There was ample evidence to warrant, although not compel, these findings: Madeleine's death was caused by a .38 caliber bullet fired at a distance of from six to twelve inches; that a spent .38 caliber bullet (slug) was found in defendant's car soon after Madeleine's lifeless and deserted body was found on the shoulder of the highway; that the .38 caliber bullet had been fired from the .38 caliber Smith & Wesson revolver owned by defendant and found several days later in a truck at defendant's home; that there was blood on the spent bullet, the revolver and the front seat of defendant's car; that Madeleine, when last seen alive, was with defendant in the area where her body was found; that a week or so prior to Christmas Eve Madeleine and defendant had had a "sputterment" and defendant had warned Horton not to interfere if he saw Madeleine and defendant "having trouble"; and that, at the Greasy Spoon shortly before Madeleine's death, defendant had spoken to her sharply and in terms of threat or warning. In addition, Sheriff Emerson's testimony as to finding the wallet containing defendant's name and $10.00 in defendant's car would seem in conflict with what defendant told him about being robbed by an unknown man in a black raincoat.
When tested by the rule of this jurisdiction in respect of the sufficiency of circumstantial evidence to warrant submission of a criminal case to the jury, stated by Higgins, J., in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, and approved in numerous subsequent decisions, State v. Roux, 266 N.C. 555, 562-563, 146 S.E.2d 654, 659-660, and cases there cited, the evidence, when considered in the light most favorable to the State, 1 Strong, N.C. Index, Criminal Law § 101, was sufficient to warrant submission of the case to the jury and to sustain the verdict.
Defendant contends the court erred in admitting the testimony "of the investigating officer" as to "incriminating statements" allegedly made by defendant to said officer "before defendant was advised of his right to remain silent and at a time when defendant was not represented by counsel." The investigating officer was Sheriff *483 Emerson. At trial, no objection was made to any portion of his testimony as to what defendant had told him early Christmas morning in the course of his investigation of the homicide. In his statement of case on appeal, defendant's counsel, for the first time, challenges the admissibility of this portion of Sheriff Emerson's testimony. In the only portion of the charge to which defendant excepts, the court, in referring to this testimony, clearly implies that defendant was then contending before the jury that Madeleine was taken from defendant's car and that defendant himself was robbed in the very manner defendant had reported to Sheriff Emerson. Defendant's counsel did not object to or protest this interpretation by the court of defendant's contention. Whether the admission of this testimony was favorable or unfavorable to defendant need not be determined. Absent this testimony, the only contention available to defendant, unimpressive under the circumstances, was that the State's evidence was insufficient to warrant conviction. Frequently defendant's counsel must consider whether the admission or the exclusion of testimony proffered by the State would be more favorable to his client. Absent extraordinary circumstances, a defendant cannot obtain whatever benefit may accrue to him from the admission of testimony without objection and in the event of an adverse verdict challenge for the first time the admissibility of such testimony.
Defendant cites Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. However, in Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882, it was held that Miranda was applicable only to cases in which the trial began after June 13, 1966, the date the decision in Miranda was announced. Defendant having been tried and convicted prior to June 13, 1966, Miranda does not apply and need not be considered in connection with defendant's appeal.
Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), although applicable to trials conducted at said May 1966 Session, did not require the trial judge, either on objection or sua sponte, to exclude Sheriff Emerson's testimony as to the statement made to him by defendant at the outset of his investigation of the homicide.
The evidence is silent as to defendant's actions between his appearance with his brother at the Hill house and their appearance in the lobby of the Police Station in Sanford. There is no evidence defendant had been arrested prior to the arrival of Sheriff Emerson. Apparently, defendant, who, according to all the evidence, had been with Madeleine at the Greasy Spoon until nearly midnight, had gone to said Police Station to report the circumstances under which he and Madeleine separated. There is no evidence of prolonged interrogation, duress, inducements, etc. On the contrary, what defendant, in the presence of his brother, told Sheriff Emerson, if it were true, completely absolved defendant from guilt in connection with Madeleine's death. Nothing indicates defendant was taken into custody by Sheriff Emerson until after the sheriff had examined defendant's car and had found a wallet containing defendant's name and $10.00 and also a .22 caliber pistol. The fact that this wallet and its contents were in defendant's car indicated strongly that defendant's statement, particularly the portion thereof to the effect he had been robbed of his pocketbook containing $20.00, was false.
True, there is no evidence to the effect the sheriff warned defendant in respect of his constitutional right to counsel, to remain silent, etc., before defendant made his statement as to what had occurred. No questions were asked either by the prosecuting attorney or by defense counsel bearing upon whether defendant was so advised. Defendant made no request that he be permitted to confer with counsel. It does not appear that defendant was charged with homicide or in custody when he talked with Sheriff Emerson in the lobby of the Police *484 Station in Sanford. It would appear that defendant, accompanied by his brother, went to the Police Station in Sanford ostensibly for the purpose of telling what he knew that would or might be of assistance in the general investigation of a homicide. Under these circumstances, the testimony now challenged was competent; a fortiori, its admission without objection was not prejudicial error.
Defendant contends the court erred in admitting into evidence the State's exhibits.
None of these exhibits has been brought to this Court as a part of the record on appeal. They are identified in the evidence as follows: Exhibits 1, 2 and 3 are the .38 revolver, the .38 slug, and the sweater, respectively. Exhibit 4 is a piece of paper identified by the ballistics expert as used in his tests. Exhibit 10 is the wallet. Exhibit 11 is the .22 pistol. Remaining exhibits are photographs admitted to illustrate the testimony of certain witnesses.
No objection was made when the testimony concerning these exhibits was offered. Near the conclusion of the evidence, the State offered Exhibits 1 through 12 and defendant objected to these exhibits "being accepted into evidence." The court inquired: "On what grounds?" Counsel for defendant answered: "No reason at this time."
The contention now made is that, notwithstanding the preliminary search of defendant's car by Sheriff Emerson was made with defendant's express permission, the legality of this and later searches was nullified by the fact there is no evidence Sheriff Emerson, prior or subsequent to the preliminary search, advised defendant of his constitutional rights in respect of searches and seizures. Miranda is the only decision cited by defendant to support this contention.
With reference to the preliminary search by Sheriff Emerson in Sanford: "Where the person voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated." State v. McPeak, 243 N.C. 243, 90 S.E.2d 501, cert. den. 351 U.S. 919, 76 S. Ct. 712, 100 L. Ed. 1451; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506. Whether the search of defendant's car at Pittsboro or the search of the truck at defendant's home in Lee County were by permission, under search warrants or otherwise legally permissible does not appear. No inquiry was made or requested with reference thereto. The evidence fails to show these exhibits or any of them should have been excluded. In any event, there is no reasonable ground to believe that the exhibits themselves, as distinguished from evidence admitted without objection with reference thereto, were prejudicial to defendant.
Defendant makes no contention with reference to the variance between the spelling of the first name of the victim in the indictment, "Mateleane," and the spelling of her name in the testimony, "Madeleine." There is no uncertainty as to her identity. The variance comes within the rule of idem sonans and is not material. See State v. Utley, 223 N.C. 39, 48, 25 S.E.2d 195, 202, and cases cited.
The record leaves the impression that defendant was treated with fairness and consideration during the investigation and at all stages of his trial. There being no prejudicial error, the verdict and judgment will not be disturbed.
No error.