{ "id": 8564055, "name": "STATE OF NORTH CAROLINA v. ELVIN CLAUDE POPE", "name_abbreviation": "State v. Pope", "decision_date": "1975-06-06", "docket_number": "No. 117", "first_page": "505", "last_page": "514", "citations": [ { "type": "official", "cite": "287 N.C. 505" } ], "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": "329 P. 2d 310", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1958, "opinion_index": 0 }, { "cite": "115 A. 2d 782", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1955, "opinion_index": 0 }, { "cite": "178 Pa. Super. 251", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 726486 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/pa-super/178/0251-01" ] }, { "cite": "31 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "71 Ga. App. 517", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1525652 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/ga-app/71/0517-01" ] }, { "cite": "20 S.E. 2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "67 Ga. App. 309", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1514550 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ga-app/67/0309-01" ] }, { "cite": "6 A. 2d 625", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1939, "opinion_index": 0 }, { "cite": "177 Md. 1", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2268072 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/md/177/0001-01" ] }, { "cite": "192 A. 2d 788", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1963, "opinion_index": 0 }, { "cite": "232 Md. 344", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2302842 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/md/232/0344-01" ] }, { "cite": "43 A. 2d 571", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1945, "opinion_index": 0 }, { "cite": "157 Pa. Super. 500", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 1061339 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/pa-super/157/0500-01" ] }, { "cite": "87 A. 811", "category": "reporters:state_regional", "reporter": "A.", "year": 1913, "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "120 Md. 229", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2121740 ], "year": 1913, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/md/120/0229-01" ] }, { "cite": "428 P. 2d 540", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "71 Wash. 2d 372", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1095269 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/71/0372-01" ] }, { "cite": "220 A. 2d 544", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "546" }, { "page": "546" } ], "opinion_index": 0 }, { "cite": "243 Md. 154", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1942777 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "157" }, { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/md/243/0154-01" ] }, { "cite": "98 S.E. 838", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "177 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654378 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0313-01" ] }, { "cite": "89 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619195 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0574-01" ] }, { "cite": "163 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "44 S.E. 593", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "132 N.C. 900", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661888 ], "year": 1903, "pin_cites": [ { "page": "901" } ], "opinion_index": 0, "case_paths": [ "/nc/132/0900-01" ] }, { "cite": "150 S.E. 122", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "123-124" } ], "opinion_index": 0 }, { "cite": "197 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630812 ], "year": 1929, "pin_cites": [ { "page": "641-642" } ], "opinion_index": 0, "case_paths": [ "/nc/197/0639-01" ] }, { "cite": "189 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575634 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0564-01" ] }, { "cite": "90 S.E. 257", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "172 N.C. 870", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256117 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/172/0870-01" ] }, { "cite": "25 S.E. 2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "223 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602236 ], "year": 1943, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0173-01" ] }, { "cite": "79 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "239 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626407 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0245-01" ] }, { "cite": "195 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558331 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0218-01" ] } ], "analysis": { "cardinality": 958, "char_count": 22973, "ocr_confidence": 0.591, "pagerank": { "raw": 5.923416410327794e-07, "percentile": 0.9531341402529645 }, "sha256": "50c183d915feee26880c03fff0227452fa1fbf1e7d8ee8994cc635ad329d9340", "simhash": "1:56f9653465c6c51e", "word_count": 3916 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ELVIN CLAUDE POPE" ], "opinions": [ { "text": "SHARP, Chief Justice.\nOn his appeal to the Court of Appeals and to this Court defendant has presented only the question whether the trial court erred in permitting the State to impeach its witness Richie Nelson Pope by introducing evidence that he had made prior statements which contradicted his testimony.\nDisregarding the prior inconsistent statements Richie himself admitted having made (which were not substantive evidence), his testimony as to the theft of the heat pump is as follows. On direct examination he said, \u201cI did not go with my father anywhere on Morganton Road on January 3, 1974. . . . I have never been to a dwelling owned by O. J. Garrison on Morganton Road.\u201d On cross-examination he said, \u201cI never denied to the Sheriff or any of the officers that I did not steal it. In fact, I pled guilty. My father did not have any part in it; he did not go with me and steal any of the air-conditioning units. I don\u2019t deny that I did it myself.\u201d\nIt remains the general rule in this jurisdiction that the solicitor (or district attorney) may not impeach a State\u2019s witness by evidence that the character of the witness is bad or that he has made prior statements inconsistent with or contradictory of his testimony. State v. Anderson, 283 N.C. 218, 195 S.E. 2d 561 (1973); State v. Tilley, 239 N.C. 245, 79 S.E. 2d 473 (1954) ; see 1 Stansbury\u2019s North Carolina Evidence (Brandis Rev., 1973) \u00a7 40.\nAlthough it is quite clear that on cross-examination Richie was testifying as a defense witness, bent upon exonerating defendant of the charge for which he was being tried, he remained the witness of the State, which had called him. See State v. Tilley, supra; 1 Stansbury\u2019s North Carolina Evidence \u00a7 41 (Brandis Rev. 1973) ; McCormick on Evidence \u00a7 38 (1972) ; 98 C.J.S., Witnesses \u00a7 578 i. (1957). Therefore under the anti-impeachment rule Sheriff Wimberly\u2019s testimony that on the night Richie was arrested he told him \u201che stayed in the vehicle, and that his daddy and Larry Martin went to the house, brought this unit back through the woods and come back . . . . \u201d was incompetent. This testimony, however, was given before any objection to it was interposed. When the objection interrupted the statement quoted above (as shown by the dots) it was at once \u201csustained as to that.\u201d Defendant made no motion to strike \u201cthat,\u201d and the judge gave the jury no instruction to disregard \u201cthat.\u201d Immediately thereafter, in answer to specific questions to which no objection was made, the Sheriff testified that Richie also told him that the unit was put in the trunk of the car; that \u201cthey\u201d took it into Southern Pines and left it; that it was later moved to his father\u2019s house; and that \u201che was nervous when they were moving it because he was involved.\u201d This evidence was likewise incompetent.\nNotwithstanding the incompetency of that portion of Sheriff Wimberly\u2019s testimony set out in the preceding paragraph the court\u2019s refusal \u201cto strike his entire testimony,\u201d is sustainable on two grounds:\nFirst, when no objection is interposed to an incompetent question at the time it is asked, a motion to strike the answer is addressed to the trial judge\u2019s discretion and his ruling is not subject to review in the absence of abuse. State v. Hunt, 223 N.C. 173, 176, 25 S.E. 2d 598, 600 (1943); State v. Merrick, 172 N.C. 870, 90 S.E. 257 (1916); State v. Lewis, 281 N.C. 564, 189 S.E. 2d 216 (1972) ; 7 N.C. Index 2d, Trial \u00a7 15 (1968).\nAs noted in Bryant v. Construction Company, 197 N.C. 639, 641-642, 150 S.E. 122, 123-124 (1929), motions to strike the answer elicited by a question to which no objection was made \u201care often allowed when the answer is not responsive to the question and contains prejudicial testimony of fact concerning which the objecting party was not put on notice. But when the answer is directly responsive it will usually be permitted to stand unless in apt time objection was made to the question propounded.\u201d In Dobson v. R. R., 132 N.C. 900, 901, 44 S.E. 593, 594 (1903), it is said: \u201cObjection should be interposed when the incompetent questions are asked. It will not do to object after the question has been asked and answered. This would give the objector two chances, one to exclude the testimony if unfavorable to him and the other to make use of it if favorable; and for this reason the law requires that parties should act promptly or else the right to have testimony excluded, or the examination conducted within proper limits, will be waived.\u201d\nSecond, as pointed out in the opinion of the Court of Appeals, where only a portion of a witness\u2019s testimony is incompetent, the party moving to strike should specify the objectionable part and move to strike it alone. State v. Williams, 274 N.C. 328, 163 S.E. 2d 353 (1968); State v. Tyson, 242 N.C. 574, 89 S.E. 2d 138 (1955). In the preliminary statement of facts the objectionable portions of Sheriff Wimberly\u2019s testimony is quoted; all other portions were competent. When defendant moved to strike the Sheriff\u2019s entire testimony, the court, in its discretion, could have stricken the incompetent evidence. It was, however, under no duty to separate the good from the bad. Nance v. Telegraph Co., 177 N.C. 313, 98 S.E. 838 (1919). Under these circumstances the court will ordinarily deny the motion. See 88 C.J.S., Trial \u00a7 143 (1955).\nOur decisions dictate the conclusion that defendant has shown no reversible error in the trial below.\nAlthough the State made no attempt to invoke its application in this case, and it is not pertinent to decision here, the evidence merits examination of a generally recognized exception or corollary to the anti-impeachment rule which does not seem to have been the subject of discussion in our decisions. This corollary allows impeachment \u201cwhere the party calling the witness has been misled and surprised or entrapped' to his prejudice.\u201d Green v. State, 243 Md. 154, 157, 220 A. 2d 544, 546 (1966) ; State v. Green, 71 Wash. 2d 372, 428 P. 2d 540 (1967); 98 C.J.S., Witnesses \u00a7 578 c (1) (1957) ; 58 Am. Jur., Witnesses \u00a7 799 (1948).\nOur decisions, in holding that the State cannot impeach its own witness, also hold that the State is not bound by what the witness says. The State\u2019s attorney, therefore, may show by other witnesses or other competent evidence that the facts are different from those to which the witness has testified. The trial judge also has the discretionary power to permit a prosecuting attorney who has been surprised by the testimony of an evasive or hostile witness to call his attention to his prior inconsistent statements for the purpose of \u201crefreshing his memory\u201d or \u201cawakening his conscience.\u201d McCormick on Evidence \u00a7 38 (1972) ; State v. Tilley, 239 N.C. at 251, 79 S.E. 2d at 477. (Clearly, this is what the solicitor attemped to do in this case.)\nIn a situation where the witness has treacherously induced the State to call him by representing that he will give testimony favorable to its contentions and then surprises the solicitor with testimony contra, cross-examination is not likely either to \u201crefresh his memory\u201d or \u201cawaken his conscience.\u201d In such instances the reason for the corollary to the anti-impeachment rule is demonstrated: \u201cIt would be grossly unfair to permit a witness to entrap a party into calling him by making a statement favorable to that party\u2019s contention, and then, when he is called and accredited by that party and gives testimony at variance with his previous statement and against that party\u2019s interest, to deny the party calling him the right to show that he was induced to do so by a previous statement of the witness made under such circumstances as to warrant a reasonable belief that the witness would repeat the statement when called to testify.\u201d 58 Am. Jur., Witnesses \u00a7 799 (1948) ; see Murphy v. State, 120 Md. 229, 233, 87 A. 811, 812 (1913).\nSurprise or entrapment, however, will not automatically invoke the anti-impeachment corollary. The State\u2019s motion to be allowed to impeach its own witness by proof of his prior inconsistent statements is addressed to the sound discretion of the trial court. The motion should be made as soon as the prosecuting attorney is surprised. He may not wait until subsequent \u201csurprises\u201d follow. Further, surprise does not mean mere disappointment; it means \u201ctaken (captured) unawares.\u201d Selden v. Metropolitan Life Ins. Co., 157 Pa. Super. 500, 43 A. 2d 571 (1945).\nBefore granting the motion the court must be satisfied that the State\u2019s attorney has been misled and surprised by the witness, whose testimony as to a material fact is contrary to what the. State had a right to expect. These preliminary questions are determined by the court upon a voir dire hearing in the absence of the jury in the manner in which the admissibility of a confession is ascertained after objection. If the trial judge finds that the State should be allowed to offer prior inconsistent statements, his findings should also specify the extent to which such statements may be offered. Green v. State, supra; Sellman v. State, 232 Md. 344, 192 A. 2d 788 (1963) ; 58 Am. Jur. Witnesses \u00a7 800 (1948).\nThe right to prove prior oral inconsistent statements is limited to statements made by the witness to the State\u2019s attorney or to some person whom he specifically instructed to communicate the statement to the attorney. Sellman v. State, supra; State v. Baltimore Contracting Co., 177 Md. 1, 6 A. 2d 625 (1939) ; Riggins v. State, 67 Ga. App. 309, 20 S.E. 2d 95 (1942) ; Allen v. State, 71 Ga. App. 517, 31 S.E. 2d 107 (1944). However, where investigating officers, whose duty it is to seek, find, preserve and analyze evidence of criminal offenses and turn it over to the prosecuting attorney for ultimate legal action, have furnished him with formally prepared, signed or acknowledged statements of witnesses, he may rely on these statements unless he possesses other information which reasonably apprises him that they were false or that the witness making them intends to repudiate them. State v. Green, 71 Wash. 2d 372, 379, 428 P. 2d 540, 545 (1967); Commonwealth v. Smith, 178 Pa. Super. 251, 115 A. 2d 782 (1955).\nWhile the cases cited in the preceding paragraph hold that the State\u2019s attorney can legitimately claim surprise in the instances above specified albeit he himself does not interview the witness before calling him to the stand, in our view the better practice, and the only safe rule, is \u201cnever to call a witness to whom you have not talked.\u201d\nWhere the prosecuting attorney knows at the time the witness is called that he has retracted or disavowed his statement, or has reason to believe that he will do so if called upon to testify, he will not be permitted to impeach , the witness. He must first show that he has been genuinely \u201csurprised or taken unawares\u201d by testimony which differed in material respects from the witness\u2019s prior statements, which he had no reason to assume the witness would repudiate. Commonwealth v. Smith, supra; State v. Green, supra; State v. Baltimore Contracting Co., supra; Perrotti v. Sampson, 163 C.A. 2d 280, 329 P. 2d 310 (1958); 98 C.J.S., Witnesses \u00a7 578 c. (2) (1957); see State v. Anderson, supra.\nTestimony tending to show a witness\u2019s prior inconsistent statements is admitted only to show that the State was surprised by his testimony and to explain why the witness was called. Such statements \u201care not probative evidence on the merits and are not to be treated as having any substantive or independent testimonial value.\u201d Green v. State, 243 Md. 154, 158, 220 A. 2d 544, 546. Their only effect is to impeach the credibility of the witness. State v. Green, supra; see 58 Am. Jur., Witnesses \u00a7 804 (1948).\nIn this case, although the evidence of Richie\u2019s prior, contradictory statements came in without objection and were.not admissible under the corollary or exception to the anti-impeachment rule, the trial judge carefully instructed the jury that Sheriff Wimberly\u2019s testimony as to those statements was not substantive evidence; that it was not evidence defendant had committed the offense with which he was charged; that the jury could consider the statements only as bearing upon the credibility of the witness Richie Pope, \u201cin determining whether to believe his testimony or not.\u201d\nOur consideration of the record in this case convinces us that, aside from the non-substantive evidence of Richie\u2019s prior inconsistent statements, substantive evidence supports defendant\u2019s conviction of the crime with which he was charged and that his trial contains no reversible error. The decision of the Court of Appeals is\nAffirmed.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General; George W. Boylan, Assistant Attorney General, for the State.", "Seawell, Pollock, Fullenwider, Van Camp and Robbins by Bruce T. Cunningham, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELVIN CLAUDE POPE\nNo. 117\n(Filed 6 June 1975)\n\" 1. Criminal Law \u00a7 90\u2014 impeachment of own witness \u2014 prior inconsistent statements\nIt remains the general rule in this jurisdiction that the solicitor (or district attorney) may not impeach a State\u2019s witness by evidence that the character of the witness is bad or that he has made prior statements inconsistent with or contradictory of his testimony.\n2. Criminal Law \u00a7 88\u2014 State\u2019s witness \u2014 testimony for defendant on cross-examination\nAlthough a State\u2019s witness was testifying on cross-examination as a defense witness, bent upon exonerating defendant of the charge for which he was being tried, he remained the witness of the State, which had called him.\n3. Criminal Law \u00a7 90\u2014 State\u2019s witness \u2014 prior inconsistent statements \u2014 evidence incompetent\nA sheriff\u2019s testimony as to prior inconsistent statements made by the State\u2019s witness was incompetent, but the trial court\u2019s refusal to strike his entire testimony was sustainable on two grounds: (1) when' no objection is interposed to an incompetent question at the time it is asked, a motion to strike the answer is addressed to the trial judge\u2019s discretion and his ruling is not subject to review in the absence of abuse; (2) where only a portion of a witness\u2019s testimony is incompetent, the party moving to strike should specify the objectionable part and move to strike it alone.\n4. Criminal Law \u00a7 90\u2014 no impeachment of own witness \u2014 exception\nThere is a generally recognized exception or corollary to the anti-impeachment rule which allows impeachment where the party calling the witness has been misled and surprised or entrapped to his prejudice, but the allowance of a motion to impeach one's own witness by proof of his prior inconsistent statements rests in the discretion of the trial court.\n5. Criminal Law \u00a7 90\u2014 impeachment of own witness \u2014 proof of prior inconsistent statements \u2014 limitation\nUnder the exception to the anti-impeachment rule the right to prove prior oral inconsistent statements is limited to state- ' ments made by the witness to the State\u2019s attorney or to some person whom he specifically instructed to communicate the statement to the attorney; however, where investigating officers, whose duty it is to seek, find, preserve and analyze evidence of criminal offenses and turn it over to the prosecuting attorney for ultimate legal action, have furnished him with formally prepared, signed or acknowledged statements of witnesses, he may rely on these statements unless he possesses other information which reasonably apprises him that they were false or that the witness making them intends to repudiate them.\nAppeal by defendant pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals finding no error in the trial before Winner, S.J., at the 31 May 1974 Session of Mooke.\nDefendant was tried upon an indictment which charged that on or about 3 January 1974 he \u201cdid feloniously steal, take and carry away\u201d a Lennox heat pump, the property of O. J. \u25a0Garrison having a. value of more than two hundred dollars. Evidence for the State tended to show:\nOn 3. January 1974. Mr. and Mrs. O. J. Garrison were engaged in building a new home between Highway 15-501. and Morganton Road in Southern Pines. As part of an air-conditioning ..system, they had purchased a Lennox heat pump from Charles Pressley, a dealer in Lennox heating and air-conditioning units. This unit, worth $650.00, was on the premises awaiting installation. On the morning of 3 January 1974, Mr. and Mrs. Garrison discovered that the pump was missing. Tracks and indentations in the wet ground indicated that the persons who had taken the unit had carried it through the woods and loaded it on a motor vehicle.\nIn its investigation of the theft, the Moore County Sheriff\u2019s Department engaged the assistance of an undercover agent, Don Tripp, of the Town of Chapel Hill. On 18 January 1974 Tripp, who had never met defendant, telephoned him at his home. He told defendant he wanted to buy an air-conditioning unit and would pay $450.00 for it. In accordance with defendant\u2019s instructions Tripp arrived at defendant\u2019s home about 8:30 p.m., and defendant met him-in the yard. Tripp identified himself as \u201cthe one that was supposed to see him that night to buy the air-conditioning unit\u201d and inquired if the price was still $450.00. When defendant said it was, Tripp asked if there was any chance of the unit being traced. Defendant said No; that the plates had been removed. Defendant helped Tripp load the heavy unit on the truck in which he had come. Tripp forthwith delivered the unit to the Moore County Sheriff\u2019s Department, where Charles Pressley examined it. Although the serial number plates had been removed Pressley was able to identify it as the unit he had sold the Garrisons by the \u201cunusual manner of work\u201d which he had done on it. He had used wire nuts, three times the normal size for such a unit, because he did not have the correct size. In order to keep the large nuts from falling off he had had to \u201cskin the wires back about two inches and fold them down.\u201d\nRichie Nelson Pope (Richie), the 19-year-old son of defendant, was called as a State\u2019s witness. After stating his name, age, address, and employment as a carpenter, Richie testified: \u201c\u00cd did not go with my father anywhere on Morganton Road on January 3, 1974. I did go with him that night to his brother\u2019s house. I have never been to a dwelling owned by O. J. Garrison on Morganton Road.\u201d\nThe next statement in the record is, \u201cJury out.\u201d In the absence of the jury Richie testified that he had \u201cpled guilty to this offense,\u201d but he \u201cwas never on the premises\u201d; that he and his father had acquired the unit as a gift from \u201ctwo Indian fellows.\u201d He said, \u201cI realize that I told Sheriff Wimberly that my father and I went to the premises and removed the property in question, loaded it and gave complete details of what occurred there at the time.\u201d\nUpon the jury\u2019s return to the courtroom Richie testified that after he was arrested on 18 January 1974 he told Sheriff Wimberly that he was driving and that his father and Larry Martin [defendant\u2019s son-in-law] were with him. He said, \u201cI told him that we went out 15-501 and stopped on the shoulder of the road there.\u201d\nIn answer to the solicitor\u2019s question, \u201cAnd did you tell him [Sheriff Wimberly] you stayed in the car and that your father and Larry Martin went through the woods up to \u2014 ,\u201d Richie answered, \u201cI told him Larry Martin did.\u201d\nOn cross-examination by defense counsel, Richie said: \u201cI never denied to the Sheriff or any of the officers that I did not steal it. In fact, I pled guilty. My father did not have any part in it; he did not go with me and steal any of the air-conditioning units. I don\u2019t deny that I did it myself.\u201d\nAt the conclusion of Richie\u2019s testimony the State immediately called C. G. Wimberly, Sheriff of Moore County, as a witness. After giving his name, position, tenure in office, and stating that he had \u201cread\u201d Richie his constitutional rights and obtained a written waiver from him, the Sheriff testified that on the night of 18 January 1974 Richie \u201cmade some statements about the theft of a Lennox heat pump.\u201d He detailed these statements as follows: \u201cHe told me that he and his daddy, Elvin [defendant], and Larry Martin left his daddy\u2019s house and went out on 15-501, said he was driving, . . . [H]e told me they went out there and he parked there on the shoulder of the road, that would be 15-501, some distance from this house. He said that he stayed in the vehicle, and that his daddy and Larry Martin went to the house, brought this unit back through the woods and come back and \u2014 \u201d\nAt this point, defendant objected; the court said, \u201cSustained as to that,\u201d and the Sheriff did not finish the statement. Immediately, thereafter, in answer to four questions from the solicitor, Sheriff Wimberly testified without objection that Richie told him that \u201cthe unit was put in the trunk of the car\u201d; that \u201cthey took it to Southern Pines and left it\u201d; that \u201cit was later moved to his father\u2019s house\u201d; and that \u201che was nervous when they were moving it because he was involved.\u201d\nThe foregoing statements concluded the Sheriff\u2019s direct examination and counsel for defendant then said: \u201cFor the record, I want to make an objection and motion to strike his entire testimony.\u201d The court\u2019s ruling was, \u201cThe motion to strike his entire testimony is denied.\u201d Thereafter defendant cross-examined the Sheriff, who said, inter alia, that defendant was not present at the time he questioned Richie.\nDefendant, as a witness in his own behalf, testified substantially as follows:\nHe has never been upon the property of O. J. Garrison, and he did not steal the Lennox heat pump. He did not talk with Don Tripp on the telephone with reference to the sale of any air-conditioning unit. He was, however, at home when Tripp came into his yard and said he had come to see an air conditioner. He showed him a unit which Larry Martin had left there three or four days earlier. \u201cNo money was involved, or no money was discussed whatsoever. Nelson Pope (Richie) was also on the premises at that time\u201d and the three of them loaded the unit into Tripp\u2019s truck. He' had no knowledge as to where Larry Martin got the unit, and he had made no statement whatever to Sheriff Wimberly or any of his deputies.\nAt the conclusion of defendant\u2019s testimony Sheriff Wimberly was recalled. He then testified that defendant was arrested on the night of January 18, 1974; that after he had explained his constitutional rights to him defendant had signed \u201cthe waiver,\u201d and answered questions about the theft of this Lennox air-conditioning unit heat pump. Defendant denied that he knew the unit had been stolen. He told the Sheriff he had found the unit in a field some distance from the road while he was rabbit hunting; that it was covered with pine straw.\nThe jury found defendant guilty as charged. The judgment of the court was that he be imprisoned for ten years, and defendant appealed. The Court of Appeals, one member of the panel dissenting, found no error in the trial, and defendant appealed as a matter of right to this Court.\nRufus L. Edmisten, Attorney General; George W. Boylan, Assistant Attorney General, for the State.\nSeawell, Pollock, Fullenwider, Van Camp and Robbins by Bruce T. Cunningham, Jr., for defendant appellant." }, "file_name": "0505-01", "first_page_order": 533, "last_page_order": 542 }