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Socony-Vacuum Oil Co., 310 U.S. 150, 84 L.Ed. 1129, 60 S.Ct. 811 (1940)" } ], "opinion_index": 0, "case_paths": [ "/us/162/0687-01" ] }, { "cite": "19 S.E. 96", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "opinion_index": 0 }, { "cite": "114 N.C. 813", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651529 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nc/114/0813-01" ] }, { "cite": "47 S.E. 435", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1904, "opinion_index": 0 }, { "cite": "135 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659075 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/nc/135/0303-01" ] }, { "cite": "42 S.E. 896", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "opinion_index": 0 }, { "cite": "131 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661196 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/nc/131/0413-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "181 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566019 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0148-01" ] }, { "cite": "212 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568917 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0472-01" ] }, { "cite": "160 S.E. 2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575372 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0377-01" ] }, { "cite": "184 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569578 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0001-01" ] }, { "cite": "189 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575271 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0415-01" ] }, { "cite": "138 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "263 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567166 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/263/0073-01" ] }, { "cite": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "156 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "215 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] } ], "analysis": { "cardinality": 1821, "char_count": 55840, "ocr_confidence": 0.691, "pagerank": { "raw": 1.2000969339129162e-06, "percentile": 0.987694070194826 }, "sha256": "c546ad0d0f413a56e0177f4f81399dd1ba52135cabf398f0a723de59fcf03750", "simhash": "1:0b61f033283e8ce0", "word_count": 9459 }, "last_updated": "2023-07-14T20:35:26.216351+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DAVID BENJAMIN SMITH (alias DAVID BENJAMIN McCULLOUGH) and BOBBY ORLANDO FOSTER" ], "opinions": [ { "text": "HUSKINS, Justice.\nDenial of their motion for judgment of nonsuit constitutes defendants\u2019 first assignment of error.\nA motion for nonsuit in a criminal case requires the court to consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference fairly deducible therefrom. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967). All the evidence actually admitted, whether competent or incompetent, which is favorable to the State must be considered when ruling on the motion. State v. Walker, 266 N.C. 269, 145 S.E. 2d 833 (1966); State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777 (1964). Contradictions and discrepancies are matters for the jury and do not warrant nonsuit. State v. Bolin, 281 N.C. 415, 189 S.E. 2d 235 (1972); State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845 (1971). If there is any evidence tending to prove the fact of guilt or which reasonably leads to that conclusion as a logical and legitimate deduction, it is for the jury to say whether it is convinced beyond a reasonable doubt of the guilt of the accused. So, upon motion for nonsuit the question is whether there is substantial evidence \u2014 direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the accused committed it. State v. McKinney, supra; State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968).\nWhen measured by these rules, the State\u2019s evidence would permit a jury to find the following facts:\n1. In August 1973 Arthur William Hawkins was employed by the Days Inn Motel on Tuckaseegee Road in Charlotte as a security guard and Norman Bruce Wagstaff was employed as a manager-trainee.\n2. On Friday evening, 10 August 1973, and in the early morning hours of the following day, Hawkins and Wagstaff were working at the motel in the performance of their duties and were last seen alive at about 1 a.m. on the morning of 11 August 1973. There was $200 in cash in the cash register that night. At about 2:45 a.m. that morning Hawkins and Wagstaff were found on the floor in the office. Each had been shot several times. Hawkins was dead and Wagstaff died shortly thereafter. Hawkins had no wallet on his person and his .32 caliber 7-shot Burgo pistol was missing from his holster. The office had been ransacked and all of the cash was missing from the cash register.\n3. Belinda Harris was a good friend of defendants Foster and Smith. On 7 August 1973, between 9 and 10 p.m., she and defendant Foster went to the Days Inn Motel on Tuckaseegee Road to take some clothing to her brother Henry Harris (also known as Henry Harris Peterson) who was staying at the motel with one Edna Felder. While there she changed into a bathing suit and went to the swimming pool but discovered it was closed. She was there long enough to observe the surroundings and the location of the motel.\n4. At about 12:30 a.m. on 11 August 1973, Belinda Harris met defendants Smith and Foster at the \u201cRight On Lounge\u201d and rode around with them in Foster\u2019s car. They later split up for a short period of time, during which Smith obtained a \u201crather raggely car.\u201d Defendants and Belinda then drove in the old car to the Days Inn Motel where she remained in the car while defendants entered the motel, ostensibly to pick up a girl. While they were gone, she heard two or more sounds like a blowout or a car backfiring. Defendants then returned to the old car, drove it to a point on the highway where they left it, reentered the original black car belonging to Foster and then drove to the house where Belinda\u2019s mother lived, picked up Belinda\u2019s brother Henry Harris and went to a restaurant to eat, after which they returned to the Belinda Harris home about 4 or 5 a.m.\n5. On the evening of 12 August 1973, Delton Harris met defendants at a party in Charlotte. They told him they were going to New York City and agreed to take Delton Harris with them. While the car was being loaded that evening, Delton Harris saw a .32 caliber pistol in the possession of defendant Smith and later saw the same pistol in the pocket of the car on the way to New York. It was the same pistol offered in evidence and identified as the property of Arthur William Hawkins. Defendants, with several other people, left that night, arriving in New York City on Monday evening, 13 August 1973.\n6. On 30 August 1973 a New Jersey State Trooper stopped the car occupied by defendants and seized a gun, partially hidden in the front seat, which was subsequently identified as the weapon belonging to Hawkins and as the weapon which fired at least one shot into Wagstaff\u2019s body.\nThis evidence is sufficient to support a finding that the offense of murder in the first degree was committed; that defendants were familiar with the operation and layout of the motel; that they planned and carried out a robbery there on the night of 11 August 1973 and in the course of the robbery Hawkins and Wagstaff were shot and killed; and that defendants fled the State to avoid apprehension. We hold there is ample evidence to carry the case to the jury and to support a verdict of guilty. The motion for nonsuit was properly denied. See, e.g., State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975); State v. McKnight, 279 N.C. 148, 181 S.E. 2d 415 (1971); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971).\nOur conclusion with respect to the sufficiency of the evidence is unaffected by defendants\u2019 contention that some of the State\u2019s evidence is contradictory and casts doubt on the credibility of the witnesses. Such contradictions and discrepancies are matters for the jury and do not warrant nonsuit. This assignment of error is overruled.\nBy their second assignment of error defendants contend the trial judge erred in not striking the entire testimony of Belinda Harris. The motion to strike is grounded upon certain answers given by her on cross-examination which suggest that part of her testimony was based on her reading, prior to trial, of the transcript of her testimony at a previous trial rather than on her present recollection of events relevant to defendants\u2019 guilt or innocence. For the reasons which follow, we hold this assignment to be without merit.\nThe ability to recall is subject to obvious limitations. Where, as here, defendants are being tried for the second or third time, there is danger that the memories of key witnesses will fade. For this reason certain doctrines have evolved whereby the witness may be aided in his recollections. It is generally accepted that two types of aid are available for a witness: past recollection recorded and present recollection refreshed. 1 Greenleaf on Evidence \u00a7 439(a) (1899). See Trust Co. v. Benbow, 131 N.C. 413, 42 S.E. 896 (1902), rev\u2019d on other grounds, 135 N.C. 303, 47 S.E. 435 (1904); State v. Staton, 114 N.C. 813, 19 S.E. 96 (1894). It is the latter type with which we are presently concerned.\nUnder this method the witness has a sufficiently clear recollection so that if allowed merely to refresh or stimulate it, he will be able to testify accurately to the controverted facts. Thus the witness finally testifies from his own recollection, Jones on Evidence \u00a7 27:4 (1972), and he uses writings, memoranda and other aids for the sole purpose of \u201cjogging\u201d his memory. Because of the independent origin of the testimony actually elicited, the stimulation of an actual present recollection is not strictly bounded by fixed rules but, rather, is approached on a case-by-case basis looking to the peculiar facts and circumstances present. 3 Wigmore, Evidence \u00a7 758 (Chadbourn rev. 1970) ; accord, 1 Greenleaf on Evidence \u00a7 439(c) (1899). We thus turn to the particular situation as disclosed by the record on appeal in this case.\nAt trial, the direct testimony of Belinda Harris was received without objection. On cross-examination, however, it was revealed that she had \u201crefreshed\u201d her memory by looking at a transcript of her testimony at a previous trial which was prepared and given to her by the State. This conduct on the part of the State was entirely proper. It is not required that the memory aid be prepared by the witness himself. Lord Ellen-borough early stated this in Henry v. Lee, 2 Chitty 124 (1810), where he said: \u201cIf upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence hut the recollection of the witness.\u201d (Emphasis added.) 3 Wigmore, Evidence \u00a7 759 (Chadbourn rev. 1970).\nAlthough some jurisdictions have suggested that the memorandum must be made contemporaneously, or nearly so, with the event, see Putnam v. United States, 162 U.S. 687, 40 L.Ed. 1118, 16 S.Ct. 923 (1896) (since distinguished on this point by United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 84 L.Ed. 1129, 60 S.Ct. 811 (1940)); Palatini v. Sarian, 15 N.J. Super 34, 83 A. 2d 24 (1951); Braden Winch Co. v. Surface Equipment Co., 196 Okla. 444, 165 P. 2d 640 (1945), there is no clear mandate for such a restriction. Moreover, where the stimulus is prior testimony or depositions, the overwhelming majority permit the recollection of the witness to be refreshed. See, e.g., United States v. Barrow, 363 F. 2d 62 (3d Cir.1966), cert. denied 385 U.S. 1001 (1967); People v. Seiterle, 65 Cal. 2d 333, 420 P. 2d 217, 54 Cal. Reptr. 745 (1966), cert. denied 387 U.S. 912 (1967); State v. Holmes, 281 Minn. 294, 161 N.W. 2d 650 (1968); People v. Ferraro, 293 N.Y. 51, 55 N.E. 2d 861 (1944); State v. Peacock, 236 N.C. 137, 72 S.E. 2d 612 (1952); State v. Coffey, 210 N.C. 561, 187 S.E. 754 (1936); State v. Finley, 118 N.C. 1161, 24 S.E. 495 (1896); Hurley v. State, 46 Ohio St. 320, 21 N.E. 645 (1889).\nNor do we find any problem with the use of a transcript to refresh the memory of a witness prior to trial. Manufacturing Co. v. R. R., 222 N.C. 330, 23 S.E. 2d 32 (1942); State v. Cheek, 35 N.C. 114 (1851).\nNevertheless, the defendants contend that the testimony should have been stricken because the transcript did not \u201crefresh\u201d her memory but merely provided a script for her to recite at trial. The evidence on this point is contradictory. At one point the witness, when questioned as to the origin of her testimony, stated that it was \u201c[o]f my own memory.\u201d At another point she said, \u201csome is to my memory, and some isn\u2019t.\u201d Such statements raise questions as to the validity of her testimony.\nBecause of the looser standards involved with present recollection refreshed, it is critical that the actual circumstances of each case conform to the underlying assumptions of the doctrine. That is, the memorandum must actually \u201crefresh\u201d the memory of the witness and his subsequent testimony must indeed be from his own recollection. Where the testimony of the witness purports to be from his refreshed memory but is clearly a mere recitation of the refreshing memorandum, such testimony is not admissible as present recollection refreshed and should be excluded by the trial judge. See United States v. Riccardi, 174 F. 2d 883 (3d Cir. 1949), cert. denied 337 U.S. 941 (1949); State v. Perelli, 125 Conn. 321, 5 A. 2d 705 (1939); accord, 3 Wigmore, Evidence \u00a7 758 (Chadbourn rev. 1970). Where there is doubt as to whether the witness purporting to have a refreshed recollection is indeed testifying from his own recollection, the use of such testimony is dependent upon the credibility of the witness and is a question for the jury. State v. Perelli, 128 Conn. 172, 21 A. 2d 389 (1941); see Wise, Boles & Bowdoin v. Fuller, 11 Ala. App. 427, 66 So. 827 (1914); State v. Burns, 158 Iowa 440, 139 N.W. 1094 (1913); St. Martin State Bank v. Steffes, 88 Mont. 85, 290 P. 259 (1930); State v. Crater, 230 Or. 513, 370 P. 2d 700 (1962).\nHere the trial judge, in his discretion, denied defendants\u2019 request to strike the testimony of the witness and submitted it to the jury for consideration. The exercise of that discretion will not be disturbed on appeal absent abuse. See 1 N. C. Index 3d, Appeal and Error \u00a7 54, and cases cited. On the record presented here, we find no abuse of discretion in the denial of the defendants\u2019 motion to strike all the testimony of Belinda Harris. This assignment is overruled.\nDefendants next assign as error the consolidation of the cases for trial. Smith contends he was prejudiced in that the evidence of Foster\u2019s visit to the motel three days prior to the date of the crime would not have been admissible against Smith in a separate trial. Foster contends he was prejudiced by the consolidation in that he offered no evidence and yet was denied the last argument to the jury. Neither contention has any merit.\nOrdinarily, motions to consolidate cases for trial are within the sound discretion of the trial judge. State v. Alford, 289 N.C. 372, 222 S.E. 2d 222 (1976); State v. King, 287 N.C. 645, 215 S.E. 2d 540 (1975). Consolidation for trial is generally proper where the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment is competent and admissible on the other. State v. Taylor, 289 N.C. 223, 221 S.E. 2d 359 (1976). Absent a showing that a joint trial has deprived an accused of a fair trial, the exercise of the court\u2019s discretion will not be disturbed on appeal. State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968). Such prejudice arises most often where the defendants offer antagonistic defenses, State v. Alford, supra, or where one defendant has made a confession which is inadmissible against the other. Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968); State v. Fox, supra. In the present case, consolidation was proper and no abuse of discretion has been shown. Defendants\u2019 third assignment of error is overruled.\nDefendants contend the trial court erroneously allowed the prosecutor to pose leading questions. For example, Officer O\u2019Brien of the Charlotte Police Department was asked: \u201cDid you notice whether or not the man was wearing any firearms ?\u201d Another example: \u201cThere was no weapon in the holster.\u201d The use of these and similar \u201cleading\u201d questions constitutes defendants\u2019 fourth assignment of error.\nA leading question is one that suggests the desired answer. Frequently, questions that may be answered by \u201cyes\u201d or \u201cno\u201d are regarded as leading. 1 Stansbury\u2019s North Carolina Evidence (Brandis rev. 1973) \u00a7 31, and cases there cited. Even sd, the trial court has discretionary authority to permit leading questions in proper instances, State v. Painter, 265 N.C. 277, 144 S.E. 2d 6 (1965), and unless prejudice is shown the discretionary action of the trial court will not be disturbed. State v. Cranfield, 238 N.C. 110, 76 S.E. 2d 353 (1953). When the testimony is competent and there is no abuse of discretion, defendant\u2019s exception will not be sustained. State v. Bruson, 287 N.C. 436, 215 S.E. 2d 94 (1975); State v. Edwards, 286 N.C. 140, 209 S.E. 2d 789 (1974). Here, no abuse of judicial discretion is shown. Some of the questions challenged were not leading; in some, the contested evidence elicited was admitted elsewhere without objection; and in others, the evidence elicited was obviously not prejudicial. Defendants\u2019 fourth assignment of error is overruled.\nDefendants\u2019 fifth assignment is grounded on the contention that the scope of their cross-examination of State\u2019s witness Delton Harris was improperly limited by the trial judge. The record shows that the trial judge sustained an objection by the State to defendants\u2019 inquiry as to the date upon which Delton Harris had been convicted for an unrelated larceny. Defendants contend they were entitled to pose the question and elicit an answer for the purpose of impeaching his memory of dates.\nIt is clear from the record that Delton Harris\u2019 memory for dates was adequately impeached by his later testimony. The question under discussion was merely cumulative and its exclusion resulted in no prejudice to defendants. This assignment is overruled.\nDuring the district attorney\u2019s cross-examination of defendant Smith, the following exchange occurred:\n\u201cQ. I\u2019ll ask you if Bobby Foster didn\u2019t make a statement to the effect to you\u2014\nMr. Shuster [Defense Counsel]: Objection.\nCourt: Overruled.\nDependants\u2019 Exception No. 27.\nQ. \u2018You didn\u2019t have to shoot him,\u2019 at which point you responded, Tf I hadn\u2019t shot him, he would have shot one of us. He had a gun.\u2019\nA. I think Robert Davis cleared that for you.\nQ. Excuse me?\nA. I think Robert Davis cleared that for you, and that\u2019s where you got the question from. I think he cleared that for you. I did not say anything to Bobby concerning that, nor did Bobby say anything to me concerning that. I deny that.\u201d\nDefendants contend that by the question posed over their objection, the State was permitted to place prejudicial material before the jury knowing that it would be denied. Thus they contend that the question was posed in bad faith and that a mistrial should have been granted. Defendants\u2019 sixth and eighth assignments of error are grounded on this exchange.\nThe challenged question does not concern collateral matters, as in State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971), and State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973). Rather, it seeks to elicit direct evidence of the guilt of the defendants. Therefore, the question was entirely proper if asked in good faith. See 1 Stansbury\u2019s North Carolina Evidence (Brandis rev. 1973) \u00a7 111. The record on appeal clearly indicates that based on a prior extrajudicial statement by Robert Davis, the State had good reason to believe defendant had made the statements embraced in the question. The voluntary statement of Robert Davis contains the following: \u201cLater Bobby told Benny you didn\u2019t have to shoot him. Benny said if I hadn\u2019t shot him he would have shot one of us he had a gun to [sic]. One of them said we are going to have to get out of here [be] cause it\u2019s getting to [sic] hot. They talked on about leaving Charlotte.\u201d Thus the record does not support defendants\u2019 contention that the question was asked in bad faith. Moreover, the trial judge instructed the jury that a negative answer to a question which assumes or insinuates a fact not in evidence \u201cis not evidence of any kind.\u201d There is no merit in assignments six and eight.\nThe failure of the trial judge to rule on a certain exception during the State\u2019s cross-examination of defendant Smith constitutes appellants\u2019 seventh assignment of error.\nWhen an objection is made the judge should rule upon it prior to the close of the proponent\u2019s case. 1 Stansbury\u2019s North Carolina Evidence (Brandis rev. 1973) \u00a7 28. Sustained and systematic failure to rule upon objections may indicate an opinion by the trial judge in violation of G.S. 1-180. State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971). Here, the record reveals only one instance where the trial judge failed to rule upon an objection. Nothing suggests an opinion by the court in violation of G.S. 1-180. Furthermore, the question objected to was proper in all respects. Thus the court\u2019s failure to rule upon the particular objection resulted in no prejudice. This assignment is overruled.\nDefendants challenge, as impermissible, portions of the prosecution\u2019s arguments before the jury. They bring forward two exceptions on appeal, but the record indicates that objection was made at trial only to the first exception. It is the general rule that an impropriety in the argument must be brought to the attention of the trial judge in time for it to be corrected, State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968), cert. denied 393 U.S. 1042, 21 L.Ed. 2d 590, 89 S.Ct. 669 (1969), unless the impropriety is so gross that it cannot be corrected, in which event the court must act ex mero motu. State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967). We find no gross impropriety with respect to the second remark to which no objection was made. So, for purposes of review, we consider only the statement properly objected to. That statement reads as follows: \u201cDelton Harris came along. The State had to put Delton Harris up. He\u2019s a friend of the defendants. He\u2019s the kind of person they run around with.\u201d\nDefendants contend the quoted statement attempts to impeach both the character of the State\u2019s witness Delton Harris and the character of defendants themselves. The argument is not persuasive. The record does not support the contention that the State is attempting to impeach the testimony of Delton Harris. It is apparent that his testimony was important to the State\u2019s case. Rather, the record shows it was the defense on cross-examination of Delton Harris who elicited evidence of bad character tending to impeach him.\nLikewise, the contention that the quoted excerpt imper-missibly reflected on the character of the defendants is without merit. When the district attorney\u2019s argument to the jury is challenged as improper, the argument of defense counsel should be placed in the record on appeal to enable appellate courts to determine whether the challenged argument has been provoked. State v. Smith, 290 N.C. 148, 226 S.E. 2d 10 (1976); State v. Miller, 288 N.C. 582, 220 S.E. 2d 326 (1975). Here, arguments made by defense counsel concerning the witness Delton Harris are not included in the record; only isolated excerpts from the argument of the district attorney are included. Under these circumstances we are unable to examine the challenged statements of the district attorney in the context in which they were presented to the jury and thus must confine our scrutiny to the face of the arguments presented, assuming such inferences as to the nature of the arguments omitted as are reasonable in light of the facts of this case. See State v. Smith, supra; State v. Miller, supra. Having done so, we find no merit in defendants\u2019 contention. Furthermore, the record discloses that Delton Harris had known defendants for a month or so, was present with them at a party on the night of 12 August 1973, rode to New York with them in Foster\u2019s black 98 Oldsmobile, and was serving time for armed robbery at the time he testified at the trial of this case. We conclude on these facts that the statement of the district attorney was essentially true and the argument properly permitted. Defendants\u2019 ninth assignment is overruled.\nIn their tenth assignment of error defendants contend the court erred in permitting Craig Plyman and Edna Mae Hawkins to testify as State\u2019s witnesses when their names were not on the list of witnesses furnished by the district attorney to defense counsel pursuant to pretrial discovery motion. The testimony of Plyman tended to corroborate what the witness Parrish had said on cross-examination about the number of Days Inn Motels open and in operation in Charlotte on the date of the crime. Mrs. Hawkins, widow of one of the victims, corroborated the previous testimony of Stanley Harris as to the signature of her husband for the purchase of the .32 caliber Burgo pistol from Fox Jewelry and Loan in Jacksonville, Florida. The record discloses that the district attorney furnished defendants the names and addresses of twenty-one witnesses but the names of these two witnesses were not on the list.\nNo error, prejudicial or otherwise, was committed in permitting these two witnesses to testify. No right of discovery in criminal cases existed at common law. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972). No right to discover the names and addresses of State\u2019s witnesses exists by statute in North Carolina. Neither former G.S. 15-155.4 nor G.S. 15A-903 requires the State to furnish the accused with a list of witnesses who are to testify against him. See State v. Hoffman, 281 N.C. 727, 190 S.E. 2d 842 (1972); State v. Peele, 281 N.C. 253, 188 S.E. 2d 326 (1972); State v. Macon, 276 N.C. 466, 173 S.E. 2d 286 (1970). Here, however, the State substantially complied with the order of the court to furnish the names and addresses of the State\u2019s witnesses. Where such a list has been furnished and the State subsequently seeks to call a witness not on that list, the court will look to see whether the district attorney acted in bad faith, State v. Carter, 289 N.C. 35, 220 S.E. 2d 313 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E. 106 (1975), and whether the defendant was prejudiced thereby. State v. Carter, supra; State v. Hoffman, supra. In the case before us bad faith by the omission of the names is not shown. Further, it is clear that defendants have suffered no prejudice as a result of the admission of the challenged testimony.\nIt is appropriate to note in connection with this assignment that when pretrial discovery legislation was introduced in the General Assembly, it provided for discovery of names and addresses of witnesses the State intended to call plus their criminal records, but that provision was deleted before the measure was enacted. See Official Commentary following G.S. 15A-903. Furthermore, the phrase \u201cor the name of each additional witness\u201d was inadvertently left in G.S. 15A-907 when the Criminal Procedure Act was enacted in 1973 and, after discovery of the inadvertence, deleted by the General Assembly in 1975. The same inadvertent enactment and subsequent deletion took place with respect to G.S. 15A-910 (b) and (c) concerning the furnishing of names and addresses of witnesses. Thus it was never the intention of the General Assembly when it enacted Article 48 of the Criminal Procedure Act to require the district attorney to furnish the names and addresses of witnesses the State intended to call. It follows that trial judges should not encourage, by court order, what the Legislature specifically rejected during consideration of the legislation. Defendants\u2019 tenth assignment is overruled.\nWe next examine the contention that the trial court erred in admitting the previously recorded testimony of Stanley Harris. Defendants\u2019 eleventh assignment of error is based on admission of such testimony.\nThe use of previously recorded testimony is authorized if it be shown that: (1) The witness is unavailable; (2) the proceedings at which the testimony was given was a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defend-? ants were present at that time and represented by counsel. 1 Stansbury\u2019s North Carolina Evidence (Brandis rev. 1973) \u00a7 145. See State v. Cope, 240 N.C. 244, 81 S.E. 2d 773 (1954); Settee v. Electric Railway, 171 N.C. 440, 88 S.E. 734 (1916). Compare State v. Prince, 270 N.C. 769, 154 S.E. 2d 897 (1967). Here defendants contend the witness Stanley Harris was available but concede that requirements (2) and (3) are met. We examine the record with respect to the availability of the witness.\nThe witness, if available, must be produced and testify de novo. State v. Cope, supra. This requirement is grounded on the right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed. 2d 293, 92 S.Ct. 2308 (1972); Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255, 88 S.Ct. 1318 (1968). However, the right of confrontation is not denied where the witness has become incapacitated to testify in court by reason of a permanent or indefinite illness. State v. Prince, supra.\nHere, the State\u2019s evidence tends to show that the witness lived in Florida, was 70 years old, had just had surgery for a tumor of the breast and an injured foot, and his doctor certified that travel would be detrimental to his health. We hold this evidence sufficient to support the finding that the witness was unavailable. Compare Norburn v. Mackie, 264 N.C. 479, 141 S.E. 2d 877 (1965), a civil case in which previously recorded testimony was admitted where a witness lived more than 100 miles away, was at least 65 years old, had undergone a recent operation, and travel would be detrimental to his health. The previously recorded testimony of the witness Stanley Harris was properly admitted. Defendants\u2019 eleventh assignment of error is overruled.\nDefendants, in their twelfth assignment of error, contend the court erred in admitting the .32 caliber Burgo pistol into evidence without requiring a complete chain of custody.\nWe find no merit in this assignment. The New Jersey State Trooper, Sinopouli, testified that he apprehended defendants in August 1973 in New Jersey and, at the time of the arrest, made a written report in which he recorded the serial number and model of the gun, to wit: serial 112195 and model 108. These numbers correspond to the serial and model numbers on the gun sold to the victim Hawkins and on the gun admitted into evidence as State\u2019s Exhibit 3. There is adequate testimony establishing that the ballistics tests were run on State\u2019s Exhibit 3. This evidence is sufficient to identify the weapon and establish its competency. See State v. Boyd, 287 N.C. 131, 214 S.E. 2d 14 (1975), a case with strikingly similar facts. This assignment is overruled.\nDefendants\u2019 thirteenth assignment, contesting the death penalty, is sustained.\nDefendants\u2019 fourteenth assignment contests the State\u2019s use of its peremptory challenges. Defendants argue that the State impermissibly used its peremptory challenges to exclude blacks from the jury, thus denying defendants a representative jury. No evidence was offered to support the contention; rather, counsel seems to rely on personal opinions and memories of previous jury trials in Mecklenburg County.\nPeremptory challenges allowed each party by G.S. 9-21 are challenges which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or without being required to assign a reason. State v. Carey, 285 N.C. 497, 206 S.E. 2d 213 (1974); State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974); State v. Allred, 275 N.C. 554, 169 S.E. 2d 833 (1969). The essential nature of the peremptory challenge denotes that it is a challenge exercised without a reason stated, without inquiry and without being subject to the court's control. Lewis v. United States, 146 U.S. 370, 36 L.Ed. 1011, 13 S.Ct. 136 (1892). In other words, the peremptory challenge permits rejection for a real or imagined partiality, and an examination of the prosecutor\u2019s reasons for the exercise of his challenges in any given case is not permitted. Swain v. Alabama, 380 U.S. 202, 13 L.Ed. 2d 759, 85 S.Ct. 824 (1965). There is no merit in defendants\u2019 fourteenth assignment of error and it is therefore overruled.\nDefendants\u2019 fifteenth assignment relates to the exclusion of certain jurors who stated on voir dire that they could not convict defendants because the conviction would result in a judgment of death. Defendants argue that since the death penalty is now unconstitutional these jurors would have been eligible and that defendants were therefore denied a representative jury.\nSuffice it to say that when the jury was selected in this case, the trial judge adhered strictly to the law as prescribed by Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968), and State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844 (1974). See State v. Monk, 291 N.C. 37, 229 S.E. 2d 163 (1976); State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976). There is no merit in this contention.\nEven so, defendants further argue that the court erred by refusing defense counsel an opportunity to examine a potential juror who had been challenged by the State on grounds that he could not convict knowing the death penalty would be imposed. Defendants sought, and were denied, an opportunity to \u201crehabilitate\u201d the potential juror by further interrogation. This argument is without merit. It is settled law that a challenge for cause should be sustained where the venireman challenged states unmistakably that he would, by reason of the death penalty, automatically vote against conviction without regard to any evidence developed at trial. Witherspoon v. Illinois, supra; State v. Monk, supra; State v. Carey, supra; State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974); State v. Fowler, 285 N.C. 90, 203 S.E. 2d 803 (1974); State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969). Here, the veniremen who were excused for cause made it unmistakably clear that they could not, under any circumstances, return a verdict of guilty knowing the mandatory death penalty would be imposed. Upon challenge, the court properly excused each venireman at that point.\nWhen the regularly summoned venire was exhausted, the court directed an officer to summon additional talismen. This was done and two jurors were examined, passed by both sides, and seated as jurors in the trial of this case. Defendants now contend that these two jurors did not come from a cross-section of the population and the court erred in allowing them to be selected in such fashion. The contention has no merit because the record shows defendants did not exhaust their peremptory challenges. They examined these jurors, passed them, and will not now be heard to complain. No prejudice is shown. State v. Fountain, 282 N.C. 58, 191 S.E. 2d 674 (1972); State v. Baldwin, 276 N.C. 690, 174 S.E. 2d 526 (1970). See State v. Boyd, 287 N.C. 131, 214 S.E. 2d 14 (1975). Defendants\u2019 fifteenth assignment of error is overruled.\nDefendants\u2019 motion in arrest of judgment was properly denied because the indictments are proper and no fatal defect appears on the face of the record. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971); State v. Higgins, 266 N.C. 589, 146 S.E. 2d 681 (1966).\nDefendants\u2019 motion to set aside the verdicts is merely formal and requires no discussion. It is addressed to the discretion of the court and refusal to grant it is not reviewable. State v. Downey, 253 N.C. 348, 117 S.E. 2d 39 (1960).\nDefendants assert the trial court erred in its charge to the jury but no portion of the charge is specified as erroneous and no reasons, arguments or citations of authority are contained in the brief as required by Rules 10 and 28, Rules of Appellate Procedure, 287 N.C. 671. Under the cited rules, no question is presented concerning the charge. Even so, in light of the seriousness of the case, we have reviewed the charge for error and find none.\nIn Woodson v. North Carolina,_U.S._, 49 L.Ed. 2d 944, 96 S.Ct. 2978 (decided 2 July 1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum. Supp. 1975), the statute under which defendants were indicted, convicted and sentenced to death. Sentences of life imprisonment are therefore substituted in this case in lieu of the death penalty by authority of the provisions of section 7, chapter 1201 of the 1973 Session Laws (1974 Session).\nOur examination of the entire record discloses no error affecting the validity of the verdicts returned by the jury. The trial and verdicts must therefore be upheld. To the end that sentences of life imprisonment may be substituted in lieu of the death sentences theretofore imposed, the case is remanded to the Superior Court of Mecklenburg County with directions (1) that the presiding judge, without requiring the presence of defendants, enter judgments imposing life imprisonment for the first degree murders of which defendants have been convicted; and (2) that in accordance with said judgments the clerk of superior court issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to the defendants and their counsel a copy of the judgments and commitments as revised in accordance with this opinion.\nNo error in the verdicts.\nDeath sentences vacated.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Charles M. Hen-sey, Assistant Attorney General, for the State of North Carolina.", "Bart William Shuster, attorney for defendant appellant Foster, and Shelley Blum, attorney for defendant appellant Smith." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID BENJAMIN SMITH (alias DAVID BENJAMIN McCULLOUGH) and BOBBY ORLANDO FOSTER\nNo. 157\n(Filed 31 January 1977)\n1. Homicide \u00a7 21 \u2014 first degree murder of motel employees \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury in a prosecution of two defendants for the first degree murders of two motel employees where it tended to show that the bodies of a motel security guard and a manager-trainee were found on the floor of the motel office at 2:45 a.m.; each had been shot several times; the security guard was dead and the manager-trainee died shortly thereafter; $200 from the cash register and the security guard\u2019s .32 caliber pistol were missing; a .25 caliber bullet was recovered from the manager-trainee\u2019s body and .32 caliber bullets were recovered from both bodies; the .32 caliber bullet recovered from the manager-trainee\u2019s body was fired from the security guard\u2019s pistol; sometime after 12:30 a.m. on the night of the crimes defendants and a female companion went to the motel; the female companion remained in the car while defendants entered the motel; while defendants were gone, their companion heard two or more sounds like a \u201cblowout or a car backfiring\u201d; defendants went to New York City the next night; a witness saw the security guard\u2019s pistol in the possession of one defendant the next night and later saw the pistol in defendants\u2019 car on the way to New York; and a New Jersey State Trooper later found the security guard\u2019s missing pistol in a car occupied by defendants.\n2. Criminal Law \u00a7 104 \u2014 nonsuit \u2014 contradictions in State\u2019s evidence\nContradictions and discrepancies in the State\u2019s evidence are matters for the jury and do not warrant nonsuit.\n3. Criminal Law \u00a7 87 \u2014 refreshing recollection of witness\nUnder the doctrine of \u201cpresent recollection refreshed,\u201d the witness has a sufficiently clear recollection so that if allowed merely to refresh or stimulate it, he will be able to testify accurately to the controverted facts; thus, the witness finally testifies from his own recollection, and he uses writings, memoranda and other aids for the sole purpose of \u201cjogging\u201d his memory.\n4. Criminal Law \u00a7 87 \u2014 refreshing recollection of witness \u2014 preparation of aid\nIt is not required that an aid for refreshing the recollection of a witness be prepared by the witness himself or be prepared contemporaneously, or nearly so, with the event.\n5. Criminal Law \u00a7 87 \u2014 refreshing recollection of witness \u2014 use of transcript prior to trial\nUse of a transcript to refresh the memory of a witness prior to trial was proper.\n6. Criminal Law \u00a7 87 \u2014 present recollection refreshed \u2014 admissibility \u2014 credibility\nWhere the testimony of a witness purports to be from his refreshed memory but is clearly a recitation of the refreshing memorandum, such testimony is not admissible as present recollection refreshed and should be excluded by the trial judge; however, where there is doubt as to whether the witness purporting to have a refreshed recollection is indeed testifying from his own recollection, the use of such testimony is dependent upon the credibility of the witness and is a question for the jury.\n7. Criminal Law \u00a7 87 \u2014 refreshing memory \u2014 transcript of prior testimony\u2014 source of testimony\nWhere a witness who \u201crefreshed\u201d her memory by looking at a transcript of her testimony at a previous trial stated at one point that the origin of her testimony was \u201cof my own memory\u201d and at another point that \u201csome is to my memory and some isn\u2019t,\u201d the trial court did not abuse its discretion in refusing to strike the testimony of the witness and in submitting it to the jury for consideration.\n8. Criminal Law \u00a7 92 \u2014 joint trial for murder\nConsolidation for trial of charges against defendants for murder of two motel employees during a robbery was not rendered improper because evidence of one defendant\u2019s visit to the motel three days prior to the crime would not have been admissible against the second defendant in a separate trial or because the second defendant offered no evidence and yet was denied the last argument to the jury.\n9.Criminal Law \u00a7 92 \u2014 consolidation of charges for trial\nConsolidation for trial is generally proper where the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment is competent and admissible on the other.\n10. Criminal Law \u00a7 92\u2014 joint trial \u2014 discretion of court\nAbsent a showing that a joint trial has deprived an accused of a fair trial, the exercise of the court\u2019s discretion will not be disturbed on appeal.\n11. Criminal Law \u00a7 87 \u2014 leading questions\nThe trial court has discretionary authority to permit leading questions in proper instances, and unless prejudice is shown the discretionary action of the trial court will not be disturbed.\n12. Criminal Law \u00a7 89\u2014 exclusion of impeachment question\nThe trial court did not err in sustaining the State\u2019s objection to defendants\u2019 inquiry on cross-examination of a State\u2019s witness as to the date the witness had been convicted of an unrelated larceny where the witness\u2019s memory for dates was adequately impeached by his later testimony and the excluded question was merely cumulative.\n13. Criminal Law \u00a7\u00a7 88, 128 \u2014 cross-examination of defendant \u2014 good faith question\nThe State\u2019s question to defendant on cross-examination as to whether a codefendant told defendant, \u201cYou didn\u2019t have to shoot him,\u201d and whether defendant replied, \u201cIf I hadn\u2019t shot him, he would have shot one of us. He had a gun,\u201d was not posed in bad faith, and the court did not err in failing to declare a mistrial because of the question, where the record shows that, based on an extra-judicial statement of a third person, the State had good reason to believe that defendants made the statements embraced in the question.\n14. Criminal Law \u00a7 162 \u2014 ruling upon objection\nWhen an objection is made the judge should rule upon it prior to the close of the proponent\u2019s case.\n15. Criminal Law \u00a7 99 \u2014 failure to rule upon objections \u2014 expression of opinion\nSustained and systematic failure to rule upon objections may indicate an opinion by the trial judge in violation of G.S. 1-180.\n16. Criminal Law \u00a7\u00a7 99, 162\u2014 failure to rule upon objection \u2014 absence of prejudice\nDefendants were not prejudiced by the failure of the trial court on one occasion to rule on an objection during the State\u2019s cross-examination of one defendant where the question objected to was proper and nothing suggests an opinion by the court in violation of G.S. 1-180.\n17. Criminal Law \u00a7 102 \u2014 jury argument not impeachment of witness and defendants\nIn this prosecution for two murders committed during a robbery, the district attorney\u2019s argument that \u201cThe State had to put [a named witness] up. He\u2019s a friend of the defendants. He\u2019s the kind of person they run around with,\u201d did not improperly attempt to impeach both the character of a State\u2019s witness and the character of defendants themselves where the record shows that it was the defense on cross-examination who elicited evidence of bad character tending to impeach the witness and that the statement of the district attorney was essentially true.\n18. Bill of Discovery \u00a7 6 \u2014 criminal cases \u2014 names of State\u2019s witnesses\nNo right of discovery in criminal cases existed at common law, and neither former G.S. 15-155.4 nor G.S. 15A-903 requires the State to furnish the accused with a list of witnesses who are to testify against him.\n19. Bill of Discovery \u00a7 6; Criminal Law \u00a7 87 \u2014 witnesses not on list furnished defendants\nThe trial court did not err in permitting two witnesses to give corroborating testimony for the State when their names were not on the list of twenty-one witnesses furnished by the district attorney to defense counsel pursuant to pretrial discovery since the State substantially complied with the court\u2019s order to furnish the names and addresses of witnesses, bad faith by the omission of the names was not shown, and defendant suffered no prejudice as a result of the admission of the challenged testimony.\n20. Criminal Law \u00a7 40 \u2014 use of previously recorded testimony\nThe use of previously recorded testimony is authorized if it be shown that: (1) the witness is unavailable; (2) the proceedings at which the testimony was given was a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and represented by counsel.\n21. Criminal Law \u00a7 40 \u2014 use of previously recorded testimony \u2014 unavailability of witness\nA witness was unavailable within the meaning of that requirement for the admission of previously recorded testimony where the witness lived in Florida, was 70 years old, had just had surgery for a breast tumor and an injured foot, and his doctor certified that travel would be detrimental to his health.\n22. Criminal Law \u00a7 57; Homicide \u00a7 20 \u2014 admissibility of pistol \u2014 chain of custody not shown\nThe evidence in a homicide case was sufficient to identify a .32 caliber pistol and to establish its competency, and the pistol was properly admitted in evidence without the State having shown a chain of custody, where a New Jersey State Trooper testified he seized a pistol when he arrested defendants and recorded the serial and model numbers of the gun in a written report, these recorded numbers corresponded to the serial and model numbers on a gun sold to the victim and on the gun admitted in evidence, and adequate testimony established that ballistics tests performed by State\u2019s witnesses were run on the pistol admitted in evidence.\n23. Constitutional Law \u00a7 29; Jury \u00a7 7 \u2014 use of peremptory challenges \u2014 alleged exclusion of blacks from jury\nThere is no merit in defendants\u2019 contention that they were denied a representative jury by the State\u2019s impermissible use of its peremptory challenges to exclude blacks from the jury since the peremptory challenge permits rejection for a real or imagined partiality, and an examination of the prosecutor\u2019s reasons for the exercise of his challenges in any given case is not permitted.\n24. Constitutional Law \u00a7 29; Jury \u00a7 7 \u2014 exclusion of jurors for death penalty views \u2014 representative jury\nDefendants in a first degree murder case were not denied a representative jury by the exclusion of certain jurors who stated on voir dire that they could not convict defendants because the conviction would result in a judgment of death, although the death penalty is now unconstitutional.\n25. Jury \u00a7 7\u2014 excusal of jurors for death penalty views \u2014 no interrogation by defense\nThe trial court properly excused for cause each venireman who made it clear that he could not, under any circumstances, return a verdict of guilty knowing that the mandatory death penalty would be imposed without first giving defendants a chance to \u201crehabilitate\u201d the venireman by further interrogation.\n26. Jury \u00a7 5\u2014 additional jurors summoned by officer\nDefendants have no cause for complaint that two jurors were chosen from additional talismen summoned by an officer when the regularly summoned venire was exhausted where defendants examined and passed the jurors and failed to exhaust their peremptory challenges.\n27. Criminal Law \u00a7 127 \u2014 motion in arrest of judgment\nDefendants\u2019 motion in arrest of judgment was properly denied because the indictments are proper and no fatal defect appears on the face of the record.\n28. Criminal Law \u00a7 163 \u2014 question concerning charge not presented\nNo question concerning the charge to the jury was presented where no portion of the charge was specified as erroneous and no reasons, arguments or citations of authority were contained in the brief as required by Rules 10 and 28, Rules of Appellate Procedure.\n29. Constitutional Law \u00a7 36; Homicide \u00a7 31 \u2014 substitution of life imprisonment for death penalty\nSentences of life imprisonment are substituted for death penalties imposed by the trial court in these first degree murder cases.\nDependants appeal from judgments of Thornburg, J., 10 May 1976 Session, Mecklenburg Superior Court.\nThe first trial of these defendants on 30 September 1974 resulted in a mistrial. At their second trial, commencing 11 November 1975, defendants were convicted of first degree murder and sentenced to death. They appealed and were awarded a new trial. See State v. Smith, 289 N.C. 143, 221 S.E. 2d 247 (1976).\nOn 10 May 1976 defendants were again placed on trial. In Case No. 74-CR-1598, defendant David Benjamin Smith, alias David Benjamin McCullough, is charged with the murder of Arthur William Hawkins, and in Case No. 74-CR-1599, said defendant is charged with the murder of Norman Bruce Wag-staff. In Case No. 74-CR-1600, defendant Bobby Orlando Foster is charged with the murder of Norman Bruce Wagstaff, and in Case No. 74-CR-1601, this defendant is charged with the murder of Arthur William Hawkins.\nAll four bills of indictment allege that the murders occurred in Mecklenburg County on 11 August 1973. The four cases were consolidated for trial.\nThe State\u2019s evidence tends to show that on 15 September 1965 Arthur William Hawkins purchased a .32 caliber Burgo, Model 108 pistol, serial number 112195, from Fox Jewelry and Loan in Jacksonville, Florida. He was employed as a security guard by the Days Inn Motel on Tuckaseegee Road in Charlotte, North Carolina, for about a year prior to his death on 11 August 1973. Norman Bruce Wagstaff was employed at the Days Inn Motel on Tuckaseegee Road as a manager-trainee.\nOn Friday evening, 10 August 1973, and into the early morning hours of Saturday, 11 August 1973, Arthur William Hawkins and Norman Bruce Wagstaff were on duty and Hawkins had his .32 caliber Burgo pistol in his possession. There was $200 in cash in the cash register. These two employees were alone when last seen around 1 a.m. on the morning of 11 August 1973.\nOn this same evening, Belinda Harris went to a night spot called the \u201cRight On Lounge\u201d or \u201cHoward\u2019s Grill\u201d with her sister and another female companion. Around 12:30 a.m. on the morning of 11 August 1973, she met defendants Smith and Foster in the parking lot at this night spot. She and her sister accompanied defendants in a black 98 Oldsmobile driven by Foster to another establishment known as \u201cBill\u2019s.\u201d Belinda\u2019s sister left the party at that point, and Belinda and the two defendants rode around awhile. Smith left the car and Belinda and Foster \u201cdrove on a short time\u201d and then met Smith, who was driving a \u201crather raggely car.\u201d Foster and Belinda got into this car with Smith and they went to the Days Inn Motel on Tuckaseegee Road in the \u201craggely car,\u201d ostensibly to pick up a girl. Smith and Foster left Belinda Harris in the car while they entered the motel. While they were gone she heard two or more sounds \u201clike either a blowout or a car backfire.\u201d They returned to the \u201craggely car\u201d shortly thereafter and left the premises. They drove to some point on a major highway with a grass median where all three of them left the \u201craggely car,\u201d walked across the grass median and entered the black 98 Oldsmobile parked there, headed in the opposite direction. They drove to the home of Belinda Harris\u2019 mother, picked up Belinda\u2019s brother Henry Harris (also known as Henry Peterson), went to an eating establishment and returned around 5 a.m.\nAbout 2:45 a.m. on the morning of 11 August 1973, the bodies of Hawkins and Wagstaff were discovered on the floor behind the counter in the office of the Days Inn Motel on Tuckaseegee Road. Hawkins was dead and Wagstaff died shortly thereafter. Each had been shot several times. Hawkins had no wallet and his .32 caliber Burgo was missing from his holster. The office had been ransacked, chairs turned over, drawers pulled out, papers scattered, a telephone off the hook, the telephone switchboard torn out of the wall, all of the cash missing, and spatters of blood at various places. Three bullets were recovered from the victims: a .32 caliber bullet from Hawkins\u2019 body, a .25 caliber bullet from Wagstaff\u2019s head and a .32 caliber bullet from Wagstaff\u2019s abdomen.\nOn Sunday night and in the early morning hours of Monday, 13 August 1973, Delton Harris met defendants at a party in Charlotte. Foster had a .38 caliber pistol in his belt during the party and left with this pistol in his possession. Defendants said they were leaving town and going to New York City. Delton Harris asked to ride with them. They went to the apartment of Belinda Harris in Foster\u2019s black 98 Oldsmobile. There, while the car was being packed, Delton Harris saw defendant Smith put a .32 caliber 7-shot revolver in a compartment in the rear of the car. Then the two defendants, accompanied by Del-ton Harris, one Barry Montgomery, Belinda Harris and her two children, left for New York City in Foster\u2019s car and arrived there on Monday evening, 13 August 1973.\nOn 30 August 1973, Trooper Douglas D. Sinopouli of the New Jersey State Police stopped Foster\u2019s car on the New Jersey Turnpike. Defendant Smith was also present in the car. The officer observed a gun partially hidden in the front seat. The weapon was seized and defendants were taken into custody. This weapon was identified as the .32 caliber Burgo, 7-shot revolver, serial 112195, model 108, belonging to Hawkins. It was later determined by ballistics tests that the .32 caliber bullet recovered from the abdomen of Wagstaff was fired from this pistol.\nDefendant David Benjamin Smith, alias McCullough, testified as a witness in his own behalf. He said Belinda Harris was his girl friend; that he saw her and Bobby Foster and others at the \u201cRight On\u201d night spot around midnight on the night of 10 August 1973, went to \u201cBill\u2019s\u201d in Foster\u2019s car, took Belinda home and picked up Henry Harris and then went to Uncle John\u2019s Pancake House, arriving there about 1 a.m. on 11 August 1973. While they sat and waited to be served, Henry Harris left and he saw Henry no more that night. He and Foster remained at the pancake house about two and a half hours, then took Belinda home where he spent the remainder of the night with her. Smith denied any participation in the crime and testified that he obtained the .32 caliber Burgo pistol from Henry Harris (Peterson) the night they were packing the car to go to New York.\nDefendant Smith offered Henry Harris, also known as Henry Peterson, who testified that he was serving a term for armed robbery in South Carolina. In August 1973 he lived with his mother and his sister Belinda Harris in a house on McDowell Street in Charlotte. After being assured by the presiding judge that the State, having once placed him on trial with defendants Smith and Foster for the murders of Hawkins and Wagstaff and having failed to make a case, could not again try him upon the same charges, Henry Harris testified that after he left Smith and Foster and his sister Belinda at the pancake house on the night of 11 August 1973, he and another man went to the Days Inn Motel on Tuckaseegee Road and killed Hawkins and Wagstaff while robbing the place. He refused to divulge the name of the other man.\nDefendant Foster offered no evidence.\nThe jury convicted defendant Smith of first degree murder of Norman Bruce Wagstaff in Case No. 74-CR-1599 and first degree murder of Arthur William Hawkins in Case No. 74-CR-1598. Smith was sentenced to death in each case.\nThe jury convicted defendant Foster of first degree murder of Norman Bruce Wagstaff in Case No. 74-CR-1600 and first degree murder of Arthur William Hawkins in Case No. 74-CR-1601. He was sentenced to death in each case.\nFrom judgments pronounced, each defendant appealed to the Supreme Court, assigning errors discussed in the opinion.\nRufus L. Edmisten, Attorney General, by Charles M. Hen-sey, Assistant Attorney General, for the State of North Carolina.\nBart William Shuster, attorney for defendant appellant Foster, and Shelley Blum, attorney for defendant appellant Smith." }, "file_name": "0505-01", "first_page_order": 529, "last_page_order": 552 }