{ "id": 8559476, "name": "STATE v. JACKIE E. STALLINGS", "name_abbreviation": "State v. Stallings", "decision_date": "1966-05-25", "docket_number": "", "first_page": "405", "last_page": "408", "citations": [ { "type": "official", "cite": "267 N.C. 405" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "92 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627281 ], "pin_cites": [ { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0771-01" ] }, { "cite": "398 P. 2d 563", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 520514 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/kan/194/0246-01" ] }, { "cite": "372 S.W. 2d 857", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10176640 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/sw2d/372/0857-01" ] }, { "cite": "100 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626501 ], "opinion_index": 0, "case_paths": [ "/nc/247/0253-01" ] } ], "analysis": { "cardinality": 395, "char_count": 9283, "ocr_confidence": 0.563, "pagerank": { "raw": 7.313407543585971e-07, "percentile": 0.9685099401548121 }, "sha256": "af298155c58664326469b03bdcd78c04e402a72a8ce015ebb72571495f455f35", "simhash": "1:102356f2c388914e", "word_count": 1538 }, "last_updated": "2023-07-14T22:57:43.953535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "STATE v. JACKIE E. STALLINGS." ], "opinions": [ { "text": "Bobbitt, J.\nDefendant assigns as error the denial of his motion for judgment as of nonsuit. There was ample evidence to support a finding that defendant was an escapee from Caledonia Prison. Discussion is limited to defendant\u2019s contention that the evidence fails to support the allegations of the indictment relating to the crime for which defendant was serving a sentence at the time of the alleged escape.\nThe indictment, as the court explained to the jury, is based on the following portion of G.S. 148-45: \u201cAny prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony . . .\u201d No question is presented as to the sufficiency of the indictment.\nIn S. v. Jordan, 247 N.C. 253, 100 S.E. 2d 497, the indictment charged that the defendant \u201cdid unlawfully, wilfully and feloniously escape and attempt to escape from the State Prison System, said prisoner having been previously convicted of escape,\" etc. The opinion states: \u201cWe do not undertake on this appeal to specify the exact averments prerequisite to a valid warrant or bill of indictment based on G.S. 148-45. Suffice to say, the bill of indictment on which defendant was tried is fatally defective. There is no averment of any kind, even in general terms, that the alleged escape of January 9, 1957, occurred while defendant was serving a sentence imposed upon his conviction of any criminal offense. In order to charge the offense substantially in the language of G.S. 148-45, it would be necessary to allege that the escape or attempted escape occurred when defendant was serving a sentence imposed upon conviction of a misdemeanor or of a felony, irrespective of whether the presently alleged escape or attempted escape is alleged to be a first or a second offense.\u201d\nThe present indictment charges that defendant escaped from lawful custody while \u201cserving a sentence for the crime of robbery with force, which is a felony under the laws of the State of North Carolina, imposed at the April Criminal 1959 Term Superior Court, Wake County,\u201d etc. We are of the opinion, and so hold, that an indictment charging a defendant with escape from lawful custody while serving a sentence imposed by judgment pronounced in the superior court of a named county for a felony is sufficient without naming the particular felony for which defendant was imprisoned. The reference to \u201cthe crime of robbery with force\u201d is surplusage. \u201cAllegations, without which an indictment or information for escape, or a related offense, is adequate, are deemed to be surplusage.\u201d 30A C.J.S., Escape \u00a7 25(6). The material averment is that defendant was serving a sentence imposed by judgment pronounced in the Superior Court of Wake County for a felony. Neither allegation nor proof that defendant\u2019s imprisonment was for \u201cthe crime of robbery with force\u201d was prerequisite to conviction. To establish the alleged crime, it was necessary to prove that defendant escaped when serving a sentence imposed by the Superior Court of Wake County for a felony.\nTo establish defendant\u2019s alleged escape was from lawful custody, the State offered evidence that defendant was in the custody of M. L. Stallings, Superintendent of State Prison Camp No. 400, under authority of commitment No. 3468 entitled \u201cState v. Jack Stallings.\u201d The portion thereof admitted in evidence recites that \u201cthe above named defendant\u201d was brought to trial at the April 1959 Criminal Term of the Superior Court- of Wake County, that he was convicted and that judgment was pronounced. In lieu of omitted portions, the following appears: \u201c(The type of offense and the punishment is not permitted to be offered and is stricken from the commitment and no part of said information was disclosed or revealed to the jury.)\u201d The record does not indicate why or at whose instance the provisions relating to the type of offense and the punishment were \u201cnot permitted to be offered.\u201d\n\u201cCourt records are generally admitted to prove the lawfulness of a prisoner\u2019s custody.\u201d 19 Am. Jur., Escape, Prison Breaking, and Rescue \u00a7 27; 30A C.J.S., Escape \u00a7 26(b), p. 902.\nUnquestionably, certified copies of the records of the Superior Court of Wake County showing defendant\u2019s conviction and sentence were admissible to show defendant was in lawful custody at the time of the alleged escape. State v. King, 372 S.W. 2d 857 (Mo., 1963), and cases cited; State v. McGee, 398 P. 2d 563 (Kan., 1965). A commitment issued under the hand and official seal of the Clerk of the Superior Court of Wake County was also admissible for this purpose. Such records were also competent to show whether the offense for which defendant was imprisoned was a felony or a misdemeanor. Here, a crucial portion of the commitment was not in evidence.\nThe superintendent, on direct examination, identified commitment No. 3468 as the commitment \u201cfor Jack Stallings.\u201d Thereafter, the record shows: \u201c(Q. And is it a commitment for a felony offense? Objection by DefendaNT OveReuled. DEFENDANT Excepts. A. Yes.) To the foregoing question and answer in brackets the defendant excepted.\u201d\nWhile the record discloses no reason why commitment No. 3468 in its entirety was not competent, it was error to permit the superintendent to testify as to the contents thereof or, more precisely, that it was \u201ca commitment for a felony offense.\u201d The admission of this testimony, bearing directly upon whether defendant was serving a sentence for a felony, was prejudicial. Even so, it was for consideration in passing upon defendant\u2019s motion for judgment as of nonsuit. S. v. McMilliam, 243 N.C. 771, 774, 92 S.E. 2d 202.\nWe have not overlooked the fact that defendant is presently indicted under the name \u201cJackie Emmitt Stallings\u201d and that commitment No. 3468 is entitled \u201cState v. Jack Stallings.\u201d However, we are of the opinion that the evidence, when considered in the light most favorable to the State, is sufficient to support a finding that the person indicted is the person referred to in commitment No. 3468 as \u201cJack Stallings.\u201d\nFor the reasons indicated, we hold the evidence sufficient to withstand defendant\u2019s motion for judgment as of nonsuit; but, for error in the admission of incompetent evidence, a new trial is awarded.\nNew trial.\nMoore, J., not sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Assistant Attorney General Bullock for the State.", "Dwight L. Cranford for defendant appellant." ], "corrections": "", "head_matter": "STATE v. JACKIE E. STALLINGS.\n(Filed 25 May, 1966.)\n1. Escape \u00a7 1\u2014\nAn indictment charging that defendant escaped from lawful custody while serving a sentence for a felony imposed in the Superior Court of a named county is sufficient without naming the felony for which defendant was imprisoned, and reference in the indictment to the felony is sur-plusage.\n2. Indictment and Warrant \u00a7 9\u2014\nIf an averment in an indictment or warrant is not necessary in charging the offense, it may be treated as surplusage.\nS. Escape \u00a7 1; Criminal Law \u00a7 40\u2014\nIn a prosecution for escape, certified copies of the record of the Superior Court showing defendant\u2019s conviction and sentence, or a commitment issued under the hand and official seal of the clerk of the Superior Court, is admissible for the purpose of showing that defendant was in lawful custody at the time of the alleged escape.\n4. Escape \u00a7 1; Criminal Law \u00a7 76\u2014\nIt is incompetent for the superintendent of a State Prison to testify that the commitment under which defendant was held was for a felony; even so, upon motion to nonsuit, such testimony must be considered, and when such testimony, together with other evidence, discloses that defendant escaped while serving a sentence imposed by a named Superior Court for a felony, denial of nonsuit is proper.\n5. Criminal Law \u00a7 168\u2014\nIn reviewing denial of motion to nonsuit, incompetent evidence admitted at the trial must be considered.\n6. Criminal Law \u00a7 65.1\u2014\nThe evidence considered in the light most favorable to the State is held to support a finding that the person indicted under the name of \u201cJackie Emmitt Stallings\u201d is the same person referred to in the commitment as \u201cJack Stallings.\u201d\nMoobe, J., not sitting.\nAppeal by defendant from Cohoon, J., January 1966 Session of Halifax.\nCriminal prosecution on bill of indictment charging that defendant on September 14, 1965, \u201cwhile . . . confined in the North Carolina State Prison System in the lawful custody of M. L. Stall-ings, Superintendent of State Prison Camp No. 400 and while then and there serving a sentence for the crime of robbery with force, which is a felony under the laws of the State of North Carolina, imposed at the April Criminal 1959 Term Superior Court, Wake County, then and there unlawfully, wilfully and feloniously did attempt to escape and escaped from the said State Prison Camp No. 400,\u201d etc.\nThe State offered evidence tending to show that defendant, a prisoner at State Prison Camp No. 400, known as Caledonia Prison, escaped therefrom on September 14, 1965; and that he was found, about midnight on September 14, 1965, stooped behind a parked automobile near a Super Market, beyond the confines of Caledonia Prison.\nThe jury returned a verdict of \u201cguilty as charged\u201d and judgment, imposing a prison sentence, was pronounced. Defendant excepted and appealed.\nAttorney General Bruton and Assistant Attorney General Bullock for the State.\nDwight L. Cranford for defendant appellant." }, "file_name": "0405-01", "first_page_order": 441, "last_page_order": 444 }