{
  "id": 8550846,
  "name": "STATE OF NORTH CAROLINA v. A. D. SMITH, JR. and ALEXANDER McRAE",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1980-08-19",
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  "casebody": {
    "judges": [
      "Judges Arnold and Hill concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. A. D. SMITH, JR. and ALEXANDER McRAE"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nNotice of appeal was given by both defendants in open court on 9 August 1979. Their joint record on appeal was filed 15 January 1980 which is 159 days after giving notice of appeal. Rule 12(a) of the Rules of Appellate Procedure provides that: \u201cWithin 10 days after certification of the record on appeal by the clerk of superior court, but no later than 150 days after giving notice of appeal, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.\u201d No timely motion was made pursuant to App. Rule 27(c) to extend the 150-day limit by this court nor petition for writ of certiorari filed pursuant to App. Rule 21. For violation of the rules the appeal may be dismissed. Craver v. Craver, 298 N.C. 231, 258 S.E. 2d 357 (1979); State v. Brown, 42 N.C. App. 724, 257 S.E. 2d 668 (1979), disc. rev. denied 299 N.C. 123, 261 S.E. 2d 924 (1980). (Petition by defendants for writ of certiorari to the North Carolina Court of Appeals allowed 8 January 1980); In re Allen, 31 N.C. App. 597, 230 S.E. 2d 423 (1976).\nWe have chosen, however, to consider the appeal on its merits pursuant to Rule 2 of the Rules of Appellate Procedure,\nIn their first argument, defendants contend the court erred in permitting the testimony of Violet Faulk as to events transpiring on 22 February 1978. They argue that such events had no relevance to the alleged offense for which the defendants were being tried, to wit: conspiracy to possess heroin occurring on or about 10 July 1977. We do not agree.\nThe evidence for the State, coming from inside the conspiracy, reveals the unlawful possession, sale and delivery of heroin prior to 10 July 1977 and thereafter. The wording of the indictments indicates a continuing offense. Violet Faulk testified on cross-examination that she turned to heroin in October 1975; that \u201cA.D. Smith turned me on to heroin.\u201d She stated that in the last part of 1975 \u201cwe had a $300.00 per day habit, my husband and I.\u201d She further testified on cross-examination: \u201cWe got money to support our habit from Mike\u2019s selling drugs. My husband would pay A.D. for the drugs he had given him beforehand. At that time we were selling drugs from our house ... near Red Springs.\u201d\nThe evidence for the State further tends to show that Mike Faulk procured heroin from the defendants and in 1977 sold it at Myrtle Beach from and after 15th or 16th of July for more than a month and from a money standpoint for about $15,000 to $20,000. \u201cEach time I got drugs, I got them from A.D. Smith, Jr. at Alex\u2019s house at Rennert. Excuse me, I didn\u2019t go and get them every time. They were brought to me on a couple of occasions by A. D. Smith, Jr. When we met at Alex\u2019s house, he was present on every occasion but one.\u201d\nDefendants except to certain testimony included in the State\u2019s redirect examination of the witness Violet Faulk. The testimony is as follows:\nEvery time we were on methadone, A. D. Smith would come and give us heroin free. When we came back from Illinois, he gave Mike two $300.00 spoons for free to get Mike back to selling heroin for him again. Then we had to pay for the drugs.\nQ. Now, the attorneys have asked you about something that happened on February the 22nd, 1978, when you pled guilty to selling heroin, among other things, to G. J. Arnold. Where did this take place?\nA. At Alexander McRae\u2019s house in Rennert.\nQ. Where was G. J. Arnold when you sold him the dope with respect to Alexander McRae\u2019s house.\nA. He was outside in the car.\nQ. All right, where had you gotten the dope to sell G. J. Arnold?\nObjection. (Both Defendants)\nThe Court: Overruled.\nDEFENDANT SMITH\u2019S EXCEPTION NO. 6\nDEFENDANT McRAE\u2019S EXCEPTION NO. 1\nA. From inside Alexander McRae\u2019s house from Alexander McRae.\nMr. Barrington: Motion to strike.\nThe Court: Overruled.\nDEFENDANT SMITH\u2019S EXCEPTION NO. 7\nDEFENDANT McRAE\u2019S EXCEPTION NO. 2\nQ. All right, now, earlier that day, that is earlier on February 22, 1978, had you been in the presence of A. D. Smith and G. J. Arnold?\nA. Yes, sir.\nQ. And had there been a conversation at that time?\nA. Yes, sir.\nQ. And had that conversation been between you and A. D. Smith?\nA. Yes, sir.\nQ. And concerning what, please, ma\u2019am?\nMr. Barrington: Objection.\nThe Court: Overruled.\nDEFENDANT SMITH\u2019S EXCEPTION NO. 8\nDEFENDANT McRAE\u2019S EXCEPTION NO. 3\nA. I went to A. D. Smith to buy the heroin for G. J. Arnold, but A. D. said he was out, and before that period, A. D., Mike and I had bought a $600.00 spoon of heroin from A. D. Smith, and he had only give us one $300.00 spoon, and -\nMr. Barrington: Objection.\nThe Court: Well, I\u2019ll sustain the objection.\nQ. All right, was G. J. Arnold present and there when you talked to A. D. Smith about wanting some heroin and he said he was out?\nA. Yes, sir.\nMr. Barrington. Move to strike her answer to that last question.\nThe Court: Overruled.\nDEFENDANT McRAE\u2019S EXCEPTION NO. 4\nWe think the testimony challenged by defendant Smith\u2019s exceptions 6 and 7 and defendant McRae\u2019s exceptions 1 and 2 was competent because substantially the same evidence was thereafter elicited on cross-examination of Mike Faulk by counsel for McRae in the following testimony:\nQ. In case number 78CRS8059, if you were not charged and convicted with on the 22nd day of February, 1978, feloniously conspiring with Violet Faulk to possess and deliver a controlled substance, to wit: heroin?\nA. Yes, sir.\nQ. You were found guilty of that, were you not?\nA. Yes, sir.\nQ. I\u2019ll ask you if you were not, in case 78CRS8058, allegedly occurring on February 22, 1978, charged and found guilty with sale of a controlled substance, to wit: heroin to one G. J. Arnold?\nA. Yes, sir, that was a buy G. J. and my wife made from Alex McRae.\nThe defendants cannot avail themselves of the exception to the rule applicable when the obj ecting party offers the evidence solely for the purpose of impeaching the credibility of the subject testimony, State v. Godwin, 224 N.C. 846, 32 S.E. 2d 609 (1945), because the appellants\u2019 questions went far beyond the scope of the State\u2019s presentation of Violet Faulk\u2019s criminal history and amplified the information Violet Faulk gave on direct examination. State v. VanLandingham, 283 N.C. 589, 197 S.E. 2d 539 (1973); 1 Stansbury\u2019s N.C. Evidence \u00a7 30 (Brandis Rev. 1973).\nMoreover, we think the testimony challenged by defendant Smith\u2019s exceptions 6,7 and 8 and defendant McRae\u2019s exceptions 1, 3 and 4 was competent because such evidence would permit a jury to find that the acts were done in furtherance of the conspiracy charged in the bill of indictment and during the penden-cy thereof, the same not having been terminated or abandoned. State v. Conrad, 275 N.C. 342, 168 S.E. 2d 39 (1969). There is nothing in the evidence to the effect that either of the appellants withdrew from the conspiracy before 22 February 1978 but their overt act on that date was committed in furtherance of the design which had theretofore been formed. State v. Brewer, 258 N.C. 533, 129 S.E. 2d 262 (1963). It was still a \u201cgoing concern\u201d and the acts of each conspirator were admissible in evidence against all parties to the agreement. State v. Gallimore, 272 N.C. 528, 158 S.E. 2d 505 (1968); State v. Maynard, 247 N.C. 462, 101 S.E. 2d 340 (1958); State v. Gibson, 233 N.C. 691, 65 S.E. 2d 508 (1951); State v. Williams, 216 N.C. 446, 5 S.E. 2d 314 (1939). Appellants\u2019 first argument is not sustained.\nWe do not agree with appellants\u2019 second argument that the court committed prejudicial error in permitting G. J. Arnold to testify as to events transpiring 22 February 1978. It was brought out on cross-examination of Violet Faulk that Arnold had seen her on 22 February 1978. Testimony that she had been in the presence of A. D. Smith came in without objection. If the quoted statement of Smith indicated a sale of heroin it constituted an admission relevant upon a charge of conspiracy. The acts and declaration of each conspirator made in furtherance of the object of the conspiracy are admissible in evidence against all parties to the agreement, regardless of whether they are present or whether they had actual knowledge of the acts or declarations. State v. Gibson, supra.\nWe find no prejudicial error in the court\u2019s admission into evidence of telephone records. Moreover, the State produced substantial other evidence implicating defendants. State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975).\nDefendants\u2019 fourth and fifth arguments are without merit.\nIn the trial we find no error sufficiently prejudicial to require a new trial.\nNo error.\nJudges Arnold and Hill concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.",
      "Barrington, Jones, Witeover, Carter & Armstrong, by C, Bruce Armstrong, for the defendant Alexander McRae and Moses, Diehl & Pate, by Philip A. Diehl for the defendant A. D. Smith, Jr."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. A. D. SMITH, JR. and ALEXANDER McRAE\nNo. 8016SC54\n(Filed 19 August 1980)\n1. Criminal Law \u00a7 155.1- record on appeal not timely filed\nDefendants\u2019 appeal was subject to dismissal where they filed their record on appeal 159 days after notice of appeal was given, and no timely motion was made to extend the 150 day limit provided by the Rules of Appellate Procedure.\n2. Narcotics \u00a7 3.1\u2014 conspiracy to sell heroin - events occurring after crime charged - competency - continuing offense\nIn a prosecution of defendants for conspiracy to possess heroin occurring on or about 10 July 1977, the trial court did not err in permitting a witness to testify concerning events transpiring on 22 February 1978, since the evidence for the State, which came from inside the conspiracy, revealed the unlawful possession, sale and delivery of heroin prior to 10 July 1977 and thereafter, and the wording of the indictments indicated a continuing offense.\n3. Criminal Law \u00a7 169- challenged evidence - similar evidence subsequently admitted\nTestimony concerning drug transactions which was challenged by defendants was competent where substantially the same evidence was thereafter elicited on cross-examination of another witness by defense counsel; defendants could not avail themselves of the exception to the rule applicable when the objecting party offers the evidence solely for the purpose of impeaching the credibility of the subject testimony, since defendants\u2019 questions went far beyond the scope of the State\u2019s presentation of the witness\u2019s criminal history and amplified the information the witness gave on direct examination; and the challenged testimony was competent because it would permit a j ury to find that the acts were done in furtherance of the conspiracy charged in the bill of indictment.\nAppeal by defendant from Fountain, Judge. Judgment entered 9 August 1979 in Superior Court, Robeson County. Heard in the Court of Appeals 20 May 1980.\nDefendants were indicted, tried and convicted of conspiring to possess a controlled substance, heroin, with the intent to sell \u201con the 10th day of July and prior thereto, 1977.\u201d From sentence of imprisonment, defendants appealed.\nAttorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.\nBarrington, Jones, Witeover, Carter & Armstrong, by C, Bruce Armstrong, for the defendant Alexander McRae and Moses, Diehl & Pate, by Philip A. Diehl for the defendant A. D. Smith, Jr."
  },
  "file_name": "0402-01",
  "first_page_order": 430,
  "last_page_order": 436
}
