{
  "id": 8630465,
  "name": "STATE v. EARL BLACK and CHARLIE FALES",
  "name_abbreviation": "State v. Black",
  "decision_date": "1949-05-25",
  "docket_number": "",
  "first_page": "448",
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    "parties": [
      "STATE v. EARL BLACK and CHARLIE FALES."
    ],
    "opinions": [
      {
        "text": "EkviN, J.\nThe defendants elicited the testimony relating to the delay in the commencement of the prosecution against them as an implied admission by conduct on the part of the State\u2019s witnesses that they were conscious of the weakness of the State\u2019s case against the defendants. Consequently, it became proper for the State to explain the delay, and to show that the inference which the defendants sought to draw from it was not warranted by the circumstances. Collins v. R. R., 187 N.C. 141, 120 S.E. 824; McCraw v. Insurance Co., 78 N.C. 149; Wigmore on Evidence (3rd Ed.), section 284; Stansbury\u2019s North Carolina Evidence, section 178; 31 O.J.S., Evidence, section 380. This the State undertook to do by the testimony of the State\u2019s witness, D.S. Lee, as to his conversation with George Canady, the representative of the State Bureau of Investigation.\nThe defendants insist with much earnestness that the ruling of the court receiving this testimony runs afoul of the Hearsay rule. They say that the soundness of their position becomes indisputably clear when the evidence of Lee as to the unsworn statements of Canady is laid alongside the well settled principle that evidence is hearsay if \u201cits probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.\u201d Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Teague v. Wilson, 220 N.C. 241, 17 S.E. 2d 9; Young v. Stewart, 191 N.C. 297, 131 S.E. 735; S. v. Lassiter, 191 N.C. 210, 131 S.E. 577.\nManifestly this contention of the defendants arises out of a misapprehension of the part which the Hearsay rule is designed to play in the law of evidence. The true office of the rule is explained with rare accuracy and succinctness in these words of Dean Wigmore: \u201cThe Hearsay rule forbids merely the use of an extrajudicial utterance as an assertion to evidence the fact asserted. Such a use would be testimonial, i.e., we should be asked to believe the fact because Doe asserted it to be true, precisely as we should be asked to believe Doe\u2019s similar assertion if made on the stand. What the Hearsay rule forbids is the use of testimonial evidence \u2014 i.e., assertions \u2014 -uttered not under cross-examination. If, then, an utterance can be used as circumstantial evidence, i.e., without inferring from it as an assertion to the fact asserted, the Hearsay rule does not oppose any barrier, because it is not applicable.\u201d Wigmore on Evidence (3rd Ed.), section 1788. This statement comports fully with, the repeated decisions of this Court holding that the testimony of a witness as to what some third person has told him will not be admitted as evidence of the existence of the fact asserted by such third person. Salmon v. Pearce, 223 N.C. 587, 27 S.E. 2d 647; Bailey v. R. R., 223 N.C. 244, 25 S.E. 2d 833; Bunting v. Salsbury, 221 N.C. 34, 18 S.E. 2d 697; Jackson v. Parks, 220 N.C. 680, 18 S.E. 2d 138; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E. 2d 199; Martin v. Crews, 210 N.C. 776, 188 S.E. 316; In re Barker, 210 N.C. 617, 188 S.E. 205; Jackson v. Scheiber, 209 N.C. 441, 184 S.E. 17; Trust Co. v. Blackwelder, 209 N.C. 252, 183 S.E. 271.\nThe court admitted the testimony of Lee as to the extrajudicial statements of Canady for the consideration of the jury \u201cupon the matter of the delay in the issuance of the warrants\u201d and not for the purpose of establishing the truth of any matter asserted by Canady. As has been pointed out, it was proper for the prosecution to show in explanation of the evidence elicited by defendants on cross-examination of the State\u2019s witnesses that the delay in the issuance of the warrants was occasioned by some reason other than a consciousness of the weakness of the State\u2019s case on the part of its witnesses. The evidence objected to consisted of two parts: one, as to the state of Lee\u2019s mind, which certainly had a tendency to establish that the reason for his delay in commencing the prosecution was inconsistent with any consciousness of the weakness of the State\u2019s case on his part; and the other, as to the extrajudicial utterances made by Canady to Lee, which certainly had a relevancy to show the inducing cause of Lee\u2019s state of mind. The testimony was not concerned in any degree with the truth or falsity of any matter asserted by Canady in his unsworn statements; Hence, its probative force depended solely on the competency and credibility of Lee, the witness by whom it was produced.\nThe court rightly admitted the evidence in question for the specific purpose for which it was offered under the evidential rule that \u201cwhenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.\u201d Wig-more on Evidence (3rd Ed.), section 1789.\nInstances of a similar use of a third person\u2019s extrajudicial statements to show another\u2019s state of mind are to be found in well considered decisions of this Court. S. v. Mull, 196 N.C. 351, 145 S.E. 677; S. v. Hairston, 182 N.C. 851, 109 S.E. 45. See, also, in this connection: S. v. Dilliard, 223 N.C. 446, 27 S.E. 2d 85.\nThe defendants assign as error the extract from the charge quoted below. After instructing the jury in complete accordance with time-honored precedents as to specific factors it might consider in determining the credibility of the witnesses and the weight to be attached to their testimony, the court concluded the part of the charge devoted to this phase of the case with these words: \u201cYou may take into consideration any other factors that suggest themselves to your good judgment and common sense to enable you to pass upon the credibility or worthiness of belief of each witness and to determine the weight, if any, you will give to the testimony of each witness.\u201d When this excerpt from the charge is restored to its context and read with the other instructions of the court on this aspect of the case, it is plain that the court merely told the jury in the language claimed to be erroneous that it might determine the credibility of the witnesses and the value of their testimony from the factors specially enumerated by the court and any other circumstances in evidence tending to shed light on these matters. Assuredly, this instruction is subject to no just criticism. Brown v. Jerrild, 29 Ariz. 121, 239 P. 795; 23 C.J.S., Criminal Law, section 1257.\nThe remaining exceptions of the defendants other than those purely formal are addressed to portions of the charge in which the court stated contentions of the State. Since the defendants did not call these matters to the attention of the court at the trial and afford the court an opportunity to correct any inadvertencies in them at that time, any errors in the court\u2019s statement of these contentions are waived. S. v. Hooks, 228 N.C. 689, 47 S.E. 2d 234; S. v. Gentry, 228 N.C. 643, 46 S.E. 2d 863; S. v. Dawson, 228 N.C. 85, 44 S.E. 2d 527.\nThe defendants have had their day in court. Their rights have been fully safeguarded by the diligent efforts of able counsel. They have been accorded a fair trial according to relevant legal rules before an impartial and learned trial judge. The jury has found them guilty upon competent evidence under a clear and correct charge. The trial in the court below must be sustained for there is in law\nNo error.",
        "type": "majority",
        "author": "EkviN, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorney-General Rhodes for the State.",
      "H. L. Kooniz and G. L. Shuping for the defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "STATE v. EARL BLACK and CHARLIE FALES.\n(Filed 25 May, 1949.)\n1. Criminal Law \u00a7 29a\u2014\nWhere defendants have elicited testimony disclosing delay in commencement of the prosecution against them in order to establish an inference that the State\u2019s witnesses were conscious of the weakness of the State\u2019s case against defendants, it is competent for the State to explain the delay for the purpose of showing that such inference was not warranted by the circumstances.\n2. Criminal Law \u00a7 35\u2014 '\nThe hearsay rule precludes the admission in evidence of extrajudicial assertions of a third person for the purpose of establishing the truth of the facts asserted by such third person, but it does not preclude testimony as to such assertions for the purpose of showing the state of mind of the witness in consequence of such assertions.\n3. Same\u2014\nDefendants elicited testimony disclosing delay in commencing the prosecution against them. To controvert the inference sought to be established by defendants from such delay, a deputy sheriff was permitted to testify for the State that an S.B.I. agent, not a witness, told the deputy not to arrest defendants at the time because they were giving the agent some information on another, unconnected case. Hel\u00e9: The testimony of the deputy is not incompetent as hearsay since it was not admitted to prove the truth of the assertions by the S. B. I. agent.\n4. Criminal Law \u00a7 53j\u2014\nThe court correctly charged the jury as to the specific factors it might consider in determining the credibility of the witnesses and the weight to be attached to their testimony, and then charged that the jury might take into consideration \u201c.any other factors that suggest themselves to your good judgment and common sense to enable you to pass upon the credibility\u201d of each witness. Hel\u00e9: The charge construed contextually merely instructed the jury that it might determine the credibility of the witnesses from the factors specially enumerated by the court and other circumstances in evidence tending to throw light upon these matters, and so construed, the charge is not erroneous.\n5. Criminal Law \u00a7 78e (2) \u2014\nAsserted misstatement of the contentions of the State must be brought to the trial court\u2019s attention in time to afford opportunity for correction in order for an exception thereto to be considered.\nAppeal by defendants, Earl Black and Charlie Eales, from Bobbiit, J and a jury, at the October Term, 1948, of the High Point Division of GrtJILEORD.\nThe defendants were tried upon consolidated indictments in which they were charged with these offenses: (1) Breaking into and entering the building of G. F. Waddell and wife, Goldie Waddell, with intent to commit the felony of larceny therein contrary to G.S. 14-54; and (2) robbery with firearms in violation of G.S. 14-87.\nThe State presented evidence at the trial indicating that the prosecuting witnesses, G. F. Waddell and his wife, Goldie Waddell, as partners, operated a restaurant known as \u201cWaddell\u2019s Stop-N-Eat\u201d in a building standing beside United States Highways 29 and 70 about half way between Greensboro and High Point in Guilford County; that after the restaurant had been closed for business, to wit, on the early morning of 19 April, 1948, two men, who were masked and armed with pistols, entered the building through a window, which they pried open, and took $1,750 belonging to the prosecuting witnesses from the presence of Goldie Waddell and from the person of G. F. Waddell by locking Goldie Waddell up in a closet and by beating, torturing, and threatening to shoot and kill G. F. Waddell; and that thereafter the intruders fled with the stolen money, leaving the prosecuting witnesses bound and gagged. In testifying for the State at the trial, both G. F. Waddell and Goldie Waddell positively identified the defendants as the perpetrators of the offenses set out above. Their evidence in this respect, however, was sharply contradicted by testimony adduced by the defendants tending to show that at the time in controversy they were at their respective homes in Wilmington, North Carolina, almost 200 miles distant from the restaurant.\nOn 20 April, 1948, G. F. Waddell advised the State\u2019s witness, D. S. Lee, a deputy sheriff of Guilford County, that he suspected the guilty parties to be a third person, whom he named, and the defendant, Earl Black, who in time past had lived in Guilford County and patronized \u2022\u201cWaddell\u2019s Stop-N-Eat.\u201d The record does not disclose, however, that this suspicion was communicated to the State Bureau of Investigation by the Sheriff of Guilford County, who sought assistance in ferreting out the perpetrators of the offenses in question.\nThe State Bureau of Investigation undertook to solve simultaneously the occurrence at \u201cWaddell\u2019s Stop-N-Eat\u201d and a charge of the defendant, Earl Black, that on 31 October, 1947, he was assaulted in a secret manner by some unknown person while standing on the driveway at his service station in Wilmington.\nThe State Bureau of Investigation made separate requests of the prosecuting witnesses and Earl Black to visit the Sheriff\u2019s Office in Fayetteville, North Carolina, with a view to determining whether or not certain men confined in the Cumberland County jail were guilty of complicity in the matters set forth above. It happened by apparent coincidence that the prosecuting witnesses and Earl Black, who was accompanied by his personal friend, the defendant, Charlie Fales, arrived at the Sheriff\u2019s Office in Fayetteville at precisely the same time. D. S. Lee and J. W. Donovant, another deputy sheriff of Guilford County, who had escorted the prosecuting witnesses from Greensboro to Fayette-ville, and George Canady, the representative of the State Bureau of Investigation having these matters in charge, were present.\nThe State offered testimony at the trial tending to show that upon encountering Black and Eales at Fayetteville the prosecuting witnesses recognized that they were the men who had entered their restaurant and robbed them of $1,750 on 19 April, 1948, and that the prosecuting witnesses thereupon called Lee and Donovant aside and secretly informed them of that fact. The defendants elicited evidence on the cross-examination of the prosecuting witnesses and Donovant, who also testified for the State, that notwithstanding these facts no prosecution was instituted against the defendants until 15 September, 1948, when warrants were issued against them upon complaints made\u2019 by Deputy Sheriff Lee charging them with the offenses involved in this case.\nThe State thereupon called on Lee to explain \u201cthe delay in the issuance of the warrants.\u201d He testified over the exceptions of the defendants that the following colloquy took place between him and George Canady, of the State Bureau of Investigation, immediately after he was advised by the prosecuting witnesses that the defendants were the men who had robbed them: \u201cI called Mr. Canady around the corner and told him that they had identified Fales and Black as the men who robbed them up there, and asked him why we didn\u2019t grab them off. Mr. Canady said, \u2018We can\u2019t arrest them at this time due to the fact they are giving me some information on another case that doesn\u2019t have any relation to Black and Fales.\u2019 He said for me to wait awhile before they were arrested. He also asked me when I did get ready to arrest them to let him know,' to be sure he had everything out of the way. I didn\u2019t issue a warrant until I got ready to arrest them and pick them up because I didn\u2019t want any information to leak out whatsoever. I didn\u2019t arrest them there that day in Fayetteville because I was asked not to by Mr. George Canady.\u201d\nThe conference between Lee and Canady occurred out of the presence of the defendants, and Canady did not testify on the trial. In admitting Lee\u2019s evidence as to his colloquy with Canady, the court gave this instruction to the jury: \u201cThis testimony, Gentlemen of the Jury, is not admitted as evidence bearing upon what happened, if anything did happen, upon the occasion referred to in the bill of indictment. It is admitted for your consideration only as it might bear \u2014 it being for you to determine to what extent, if any, it does bear \u2014 upon the matter of the delay in the issuance of the warrants.\u201d\nThe jury found the defendants guilty upon both of the charges, the court sentenced the defendants to imprisonment in the State\u2019s prison, and the defendants appealed, assigning as errors the evidence of the State\u2019s witness, D. S. Lee, as to bis colloquy with Canady and certain excerpts from the charge.\nAttorney-General McMullan and Assistant Attorney-General Rhodes for the State.\nH. L. Kooniz and G. L. Shuping for the defendants, appellants."
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