{
  "id": 8548286,
  "name": "STATE OF NORTH CAROLINA v. DONALD FREDERICK FAULKNER and ARTHUR SMITH",
  "name_abbreviation": "State v. Faulkner",
  "decision_date": "1969-06-18",
  "docket_number": "No. 6926SC235",
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    "judges": [
      "Beitt and PARKER, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DONALD FREDERICK FAULKNER and ARTHUR SMITH"
    ],
    "opinions": [
      {
        "text": "MALLARD, G.J.\nAt the trial when the confessions of the defendants were sought to be introduced into evidence, the trial court held a voir dire as to their admissibility and made the following findings of fact and conclusion of law:\n\u201cBased upon the foregoing testimony, this court finds as a fact that the defendant, Donald Fredrick Faulkner and the defendant Arthur Smith were advised of their right to remain silent, that anything that either of the defendants . . . that anything that the defendant said could be used against him in a court of law; thirdly, that he has the right to remain silent, I mean, has the right to the presence of an attorney during the questioning and that if he could not afford an attorney that one would be provided for him at no cost, and that any statement which either of the defendants made to the witness were knowingly, and intelligently, understanding^ and voluntarily made.\u201d\nG.S. 15-41 dealing with when an officer may arrest without a warrant provides in part:\n\u201c (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.\u201d\nConceding without deciding that the arrest of defendant Faulkner at 4:00 A.M. was illegal, it has little bearing on the decision in this case. In the case of State v. Moore, 275 N.C. 141, 166 S.E. 2d 53 (1969), we find the following language:\n\u201cWe condemn any illegal act by police officers. However, when viewed in the narrow field of voluntary confession, we fail to see why an illegal arrest \u2014 unaccompanied by violent or oppressive circumstances \u2014 would be more coercive than a legal arrest.\nBoth reason and weight of authority lead us to hold that every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility.\u201d\nIn the present case, the findings of fact and conclusion of law as to the voluntariness of the statements of the defendants are amply supported by the evidence and when viewed in the totality of the circumstances of this case we hold that their admission was not error. See Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420, (1969). See also State v. Vickers, 274 N.C. 311, 163 S.E. 2d 481 (1968). However, since there were three witnesses who saw the crime committed, it may be that the Solicitor will not deem it expedient to attempt to use these statements, as such, on the new trial.\nThe defendants contend that it was error to permit the State \u201cto introduce the confessions of both defendants in a joint trial where the confession of each implicated the other.\u201d The defendants, by going upon the witness stand and subjecting themselves to cross-examination by the other, waived this objection. In State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968), there appears the following:\n\u201cThe result is that in joint trials of defendants it is necessary to exclude extra-judicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant . . . and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation.\u201d (Emphasis added).\nIn this case, both defendants later took the stand and were accorded their right to confrontation. Defendants cite no authority supporting their contention. However, the defendants say that both of them denied having made the confession and \u201cif cross-examination can produce nothing more than a denial by the witness that he made the statement at all, then there is no cross-examination.\u201d Defendants were brought face-to-face with each other on the witness stand. Each had the right to cross-examine the other. The right to cross-examine does not mean that the cross-examination must produce that which is favorable. It is common knowledge that it frequently produces unfavorable results.\nThe trial judge instructed the jury that they could find each defendant guilty of armed robbery as charged or not guilty. Each of the defendants contend that the trial judge committed prejudicial error in failing to submit the lesser offense of common-law robbery. Robbery at common law is defined as \u201cthe felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear.\u201d State v. Bell, 228 N.C. 659, 46 S.E. 2d 834 (1948). The statute G.S. 14-87 \u201cdoes not add to or subtract from the common-law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission or attempted commission of the offense, sentence shall be imposed as therein directed.\u201d State v. Jones, 227 N.C. 402, 42 S.E. 2d 465 (1947).\nIn the case of State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955), it is said:\n\u201cAn indictment for robbery with firearms will support a conviction of a lesser offense such as common law robbery, assault with a deadly weapon, larceny from the person, simple larceny or simple assault, if a verdict for the included or lesser offense is supported by the evidence on the trial. S. v. Bell, 228 N.C. 659, 46 S.E. 2d 834; S. v. Holt, 192 N.C. 490, 135 S.E. 324.\u201d\nIn the case of State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954) it is said:\n\u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The 'presence of such evidence is the determinative factor. Hence, there is no such necessity if the State\u2019s evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State\u2019s evidence in part and might reject it in part will not suffice.\u201d\nThe defendants\u2019 evidence was that they did not participate in any robbery and that they were at another place at the time the crime was committed. Each defendant testified and offered evidence tending to corroborate him in his testimony that he was at another place at the time the robbery occurred. In the evidence of the defendants there is nothing that would require the judge to charge on any lesser offense.\nThe State\u2019s evidence tended to show by three witnesses and the confession of each of the defendants that the two defendants robbed the cashier with a pistol. State\u2019s witness Smith testified that the defendant Arthur Smith told him that defendant Donald Faulkner got a \u201cRoscoe\u201d at a poolroom, and that Donald Faulkner told him that \u201che pulled a gun out of his pocket and hit the woman on the head.\u201d\nA pistol is sometimes referred to as a \u201cRoscoe.\u201d A pistol is a \u201cshort firearm, intended to be aimed and fired from one hand.\u201d Black\u2019s Law Dictionary, Fourth Edition. A gun is a portable firearm and usually includes pistols, carbines, rifles, and shotguns.\nThe State\u2019s witness Pearline Anthony testified that the defendant Faulkner hit her on the side of the head with a pistol. On cross-examination she stated, \u201cI couldn\u2019t be certain whether this was a real pistol or a toy pistol. It just looked like a pistol.\u201d The State\u2019s other two witnesses to the robbery testified that the defendant Faulkner had a .22 caliber pistol. This testimony of the State\u2019s witness Anthony that she couldn\u2019t be certain whether it was a real pistol or a toy pistol relates to a material element of the crime of armed robbery. This testimony is in conflict with the other testimony of this same witness that it was a pistol and required the judge, without a request from the defendants, to also charge the jury that they could return a verdict of guilty of the lesser included offense of common-law robbery. It was prejudicial error to fail to do so. If one of the witnesses could not tell whether it was a pistol or a toy, the jury should determine this conflict in the State\u2019s evidence.\nThe actual possession and use or threatened use of firearms or other dangerous weapon is necessary to constitute the offense of robbery with firearms or other dangerous weapon. Whether it was a firearm or a toy pistol, and if a toy pistol, whether it was a dangerous weapon, were questions for the jury under proper instructions. State v. Keller, 214 N.C. 447, 199 S.E. 620 (1938). See annotation in 61 A.L.R. 2d 996, entitled \u201cRobbery- \u2014 Toy or Simulated Gun.\u201d\nDefendants make other assignments of error, but since the case goes back for a new trial, we do not deem it necessary to discuss them.\nNew trial.\nBeitt and PARKER, JJ., concur.",
        "type": "majority",
        "author": "MALLARD, G.J."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Staff Attorney Richard N. League for the State.",
      "Arthur Goodman, Jr., for defendant Faulkner.",
      "Franklin L. Teague for defendant Arthur Smith."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DONALD FREDERICK FAULKNER and ARTHUR SMITH\nNo. 6926SC235\n(Filed 18 June 1969)\n1. Criminal Law \u00a7 75\u2014 voluntariness of statements \u2014 illegal arrest\nStatements made by a person in custody as a result of an illegal arrest are not ipso facto involuntary and inadmissible.\n2. Criminal Law \u00a7 76\u2014 voluntariness of statements \u2014 findings of fact\nIn armed robbery prosecution, trial court\u2019s findings of fact and conclusions of law as to the voluntariness of defendants\u2019 statements are held amply supported by the evidence and, when viewed in the totality of the circumstances, their admission was not error.\n3. Constitutional Law \u00a7 31; Criminal Law \u00a7 i)5\u2014 joint trial of defendants \u2014 confessions \u2014 waiver of objection\nWhere each defendant in a joint trial takes the stand and subjects himself to cross examination by the other, the defendants waive the objection that it was error to introduce their confessions which implicated each other.\n4. Witnesses \u00a7 8; Criminal Raw \u00a7 88\u2014 cross-examination \u2014 nature and extent\nRight of cross-examination is accorded to defendants when they are brought face to face with each other on the witness stand.\n5. Witnesses \u00a7 8; Criminal Law \u00a7 88\u2014 right of cross-examination\nThe right to cross-examine does not mean that the cross-examination must produce that which is favorable.\n6. Robbery \u00a7 1\u2014 common law robbery \u2014 elements\nCommon law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear.\n7. Robbery \u00a7 1\u2014 armed robbery\nG.S. 14-87 does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission or attempted commission of the offense sentence shall be imposed as therein directed.\n8. Robbery \u00a7 1\u2014 pistol defined\nA pistol is a short firearm, intended to be aimed and fired from one hand.\n9. Robbery \u00a7 1\u2014 gun defined\nA gun is a portable firearm and usually includes pistols, carbines, rifles and shot guns.\n10. Robbery \u00a7 5\u2014 armed robbery \u2014 instruction on lesser degree of crime\nIn armed robbery prosecution, trial judge was required, without a request from the defendants, to charge the jury that they could return a verdict of guilty of the lesser included offense of common law robbery where State\u2019s witness had testified on cross-examination that she was not certain whether defendants used a real pistol or a toy pistol in the commission of the robbery.\n11. Robbery \u00a7 1\u2014 armed robbery \u2014 nature of the offense \u2014 use of firearms\nThe actual possession and use or threatened use of firearms or other dangerous weapon is necessary to constitute the offense of robbery with firearms or other dangerous weapon.\n12. Robbery \u00a7 5\u2014 armed robbery \u2014 use of firearm or toy \u2014 jury questions\nIn armed robbery prosecution, where the State\u2019s witness testified on cross-examination that she was not certain whether the defendants used a real pistol' or a toy pistol in the commission of the robbery, whether the \u201cweapon\u201d was a firearm or a toy pistol, and if a toy pistol, whether it was a dangerous weapon, held questions for the jury under proper instructions.\nAppeal by defendants from Falls, J., 2 December 1968 Schedule A Session of Superior Court of MeCKLENbuRG County.\nThe defendants were tried upon a proper bill of indictment which charged them with the armed robbery of the Frances Meat and Grocery, a business owned by Robert Neal, at 2820 Statesville Avenue, Charlotte, North Carolina. The robbery took place on 28 October 1968 and a total of $210.52 in currency and coin was taken. Upon the call of the case for trial, the defendants pleaded not guilty and trial was by jury.\nThe evidence for the State tended to show that the two defendants at about 6:30 P.M. on the night of 28 October 1968 entered the Frances Meat and Grocery while the cashier was alone in the store. Defendant Faulkner had a gun and after a tussle, the cashier was struck on the head with the pistol. A customer came in and was forced to the rear of the store. Faulkner then, by threats, forced the cashier to open the cash register. Defendant Smith took all the money out of the register and stuffed it in his coat pocket. Another customer then entered the store, and he too was forced to go to the rear of the store. The defendants left the store through the front door. The cashier and the two customers identified the defendant Faulkner as one of the men who had committed the robbery, and the cashier and one of the customers identified defendant Smith as one of the men who had committed the robbery. Detective H. R. Smith of the Charlotte Police Department testified that at his request defendant Faulkner was taken into custody at 4:00 A.M. on the morning of 5 November 1968. He was placed in jail where he remained until approximately 7:30 A.M. when Detective Smith took him from the jail to the detective bureau in the Police Department where defendant Faulkner was informed of his constitutional rights. At 7:35 A.M. Faulkner signed a waiver of his right to counsel. About a half hour later Faulkner admitted his participation in the crime. Faulkner\u2019s statement implicated defendant Smith who was arrested with a warrant at about 11:30 A.M. the same morning. The defendant Smith also signed a waiver of his right to counsel, and made a statement admitting his participation in the crime after being questioned for about an hour. Smith\u2019s statement implicated defendant Faulkner.\nAt the trial both defendants testified and denied their participation in the crime alleged and stated that they had not made the statements attributed to them. Defendant Smith introduced evidence to show that he was home at the time of the robbery. Defendant Faulkner introduced evidence to' show that he was at the Sportsman\u2019s Boxing Club at the time of the robbery.\nThe jury returned a verdict of \u201cGuilty as charged in the Bill of Indictment\u201d as to both defendants. From a judgment sentencing them to \u201cnot less than twenty-nine (29), nor more than thirty (30) years,\u201d the defendants appeal to the Court of Appeals, assigning error.\nAttorney General Robert Morgan and Staff Attorney Richard N. League for the State.\nArthur Goodman, Jr., for defendant Faulkner.\nFranklin L. Teague for defendant Arthur Smith."
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