{
  "id": 8556746,
  "name": "STATE OF NORTH CAROLINA v. ERNEST DALE SMITH and JOHN WAYNE SHELTON",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1973-03-28",
  "docket_number": "No. 7217SC791",
  "first_page": "694",
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  "last_updated": "2023-07-14T17:26:57.402584+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ERNEST DALE SMITH and JOHN WAYNE SHELTON"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant\u2019s first assignment of error is directed to the denial of his motion for mistrial. The reason stated by defendant\u2019s counsel for making motion for mistrial was that the solicitor, in his opening statement made during the process of selecting the jury, stated that Spivey had come into court and pleaded guilty to the same offense for which defendant was being tried. Insofar as the record before us discloses, however, the only statement which the solicitor made in the presence of the jury panel was to the effect that the State contended that Spivey was a reliable witness, and then the solicitor inquired if any member of the jury panel \u201cwould not under any circumstances take the testimony of an accomplice?\u201d The record does not contain the statement attributed to the solicitor as the reason given by defendant for his motion for mistrial, but contains only a statement by defendant\u2019s counsel as to what the solicitor said. We cannot accept the statement of counsel as sole support for the remarks challenged. 3 Strong, N. C. Index 2d, Criminal Law, \u00a7 158. Moreover, even if the remarks attributed to the solicitor were made in the presence of the jury panel, in our opinion no prejudicial error resulted under the circumstances of his case. Spivey was presented as a witness for the State, testified in detail concerning his own and defendant\u2019s participation in the offense for which defendant was tried, and was subjected to full cross-examination by defendant\u2019s counsel. Defendant\u2019s first assignment of error is overruled.\nIn his second assignment of error defendant contends the court erred in permitting the solicitor to \u201clead\u201d the witness Spivey in his testimony. The contention is without merit. It is well settled that the allowance of leading questions is a matter entirely within the discretion of the trial judge and his rulings will not be reviewed on appeal, at least in the absence of a showing of abuse of discretion. Stansbury, N. C. Evidence 2d, \u00a7 31, p. 59. No abuse of discretion is shown.\nIn his third assignment of error defendant contends the court erred in permitting the witness Spivey to testify to other crimes allegedly committed by him together with defendant and Smith. Spivey\u2019s testimony tended to show a conspiracy between Spivey, Smith and defendant to break and enter the Harris Home Center, Inc., in whose place of business the alleged safecracking occurred. In cross-examining Spivey, defendant\u2019s attorney elicited testimony tending to attack Spivey\u2019s credibility, including testimony that Spivey had been involved in some 45 or 50 crimes to which he had confessed and in which he had implicated others. On redirect examination, Spivey testified that he was under indictment in 40 or 50 cases and, over objection, testfied that defendant and Smith were involved with him in some or all of the other cases.\nThe general rule is that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense. State v. Fowler, 230 N.C. 470, 53 S.E. 2d 853; State v. Choate, 228 N.C. 491, 46 S.E. 2d 476. This is true even though the other offense is of the same nature as the crime charged. State v. Jeffries, 117 N.C. 727, 23 S.E. 163. However, the rule stated is subject to certain well recognized exceptions set forth by Ervin, J., in State v. McClain, 240 N.C. 171, 81 S.E. 2d 364. We think the testimony challenged here falls within the sixth exception set forth in McClain, as follows:\n\u201cEvidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. (Citations omitted.) Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity.\u201d\nThis assignment of error is overruled.\nDefendant\u2019s fourth assignment of error relates to what we view as a \u201cslip of the tongue.\u201d S.B.I. Agent Batten, as a witness for the State, was asked by the solicitor if defendant made a statement to him relative to \u201cthis particular breaking and entering.\u201d Defense counsel objected and the court instructed the jury to consider the answer \u201cfor the purpose of corroborating the testimony of the witness Spivey if you find that it does corroborate his testimony and for that purpose only.\u201d Thereafter, the witness testified that Mr. Spivey made a statement and the witness proceeded to relate the statement. We think the instruction of the court and the testimony of the witness made it completely clear that the statement which the witness related was made by Spivey and not by defendant. This assignment of error is overruled.\nWe have carefully considered the other assignments of error brought forward and argued in defendant\u2019s brief but finding them also without merit, they too are overruled.\nNo error.\nJudges Britt and Vaughn concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Assistant Attorney General Henry T. Rosser for the State.",
      "H. Glenn Pettyjohn for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERNEST DALE SMITH and JOHN WAYNE SHELTON\nNo. 7217SC791\n(Filed 28 March 1973)\n1. Criminal Law \u00a7 158\u2014 statement of solicitor not in record \u2014 assignment of error overruled\nWhere the record did not include the remarks of the solicitor upon which defendant based his motion for mistrial, the court on appeal could not sustain defendant\u2019s assignment of error relying solely on a statement by defendant\u2019s counsel as to what the solicitor said.\n2. Criminal Law \u00a7 87 \u2014 leading questions \u2014 no abuse of discretion\nThe trial court in a safecracking case did not abuse its discretion in allowing the solicitor to ask leading questions of a witness.\n3. Criminal Law \u00a7 34\u2014 evidence of defendant\u2019s guilt of other offenses \u2014 admissibility\nThough the State generally cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense, the trial court in a safecracking case did not err in allowing into evidence testimony by a witness that defendant was involved with him in some or all of 40 or 50 other crimes for which he was under indictment since evidence of these other crimes tended to establish a common plan or scheme connecting defendant with the crime charged.\nAppeal by defendant from Crissman, Judge, 8 May 1972 Session of Superior Court held in SURRY County.\nDefendant was tried on an indictment charging him with safecracking in violation of G.S. 14-89.1. Without objection he was tried jointly with one Ernest Dale Smith, who was charged with the same offense. The principal evidence against defendant and Smith was provided by the testimony of Eddie Ray Spivey, an accomplice. Defendant and Smith offered no evidence. Defendant was found guilty as charged, and from judgment imposing prison sentence, he appealed.\nAttorney General Robert Morgan by Assistant Attorney General Henry T. Rosser for the State.\nH. Glenn Pettyjohn for defendant appellant."
  },
  "file_name": "0694-01",
  "first_page_order": 718,
  "last_page_order": 721
}