State v. Westmoreland
State v. Westmoreland
Opinion of the Court
Defendant’s first assignment of error is directed to the failure of the court to allow his motion for judgment of nonsuit. The evidence tends to show: The defendant, his wife, and one other drove up to the front of Graves Grocery, drove past the front and parked in the garage in the driveway. There were three people in the car. They asked for oil. The store employee, prosecuting witness, put the oil in the car after one of the occupants had gotten out and helped him raise the hood. The defendant got out of the car, but the employee did not know where he went. Defendant’s wife got out of the car and went in the store. After the witness finished putting the oil in the car, he started in the store and found the door locked. He could not say whether anyone locked the door because it did “lock
The evidence is sufficient for submission to the jury under proper instructions from the court. Defendant’s first assignment of error is overruled.
Defendant next argues that prejudicial error was committed when the court allowed “an in-court identification of the defendant.” The record reveals that the store employee was the first witness for the State. The solicitor had a most difficult time getting the witness to understand the questions and give an answer which was responsive to the question asked. The solicitor was attempting through the witness to develop the events on the night of the robbery. He asked witness if any person came to the store about 7:30 on 20 November. The witness replied “Not except the ones that’s involved.”
*360 “Q. The ones involved?
A. Yes.
Q. You’re talking about these two people?
Mr. Yokley : Objection to leading.
Court: Objection Sustained. Do not lead the witness. Go ahead.”
The solicitor for two pages of evidence tried valiantly to get the witness to testify as to who was in the store on 20 November at about 7:30 p.m. with little or no success. He finally succeeded in getting the testimony that Mrs. Westmoreland and two other people came to the store in a car. The following transpired:
“Q. Is one of the other three people in the court today?
A. I think so.
Mr. Yokley: Objection, your Honor.
Court: Objection Sustained as to what he thinks. You will disregard what he thinks, members of the jury. Go ahead.
Q. Mr. Horton, was this lady back here in the green, was she in your place of business?
A. She come in along about that same time.
Q. And was this woman in your place of business?
Mr. Yokley: Objection, your Honor.
Court: Objection Overruled.
Exception No. 3.
A. Yes, she was in.
Q. How about this man, was he in your place of business?
Mr. Yokley: Objection.
Court: Overruled.
Exception No. 4.
A. Yes, he come in right at the end, right on the end. She just barely come to the door—
*361 Me. Yoklby: Objection, your Honor. Objection to the answer and motion to strike.
Court: To pointing out the defendant?
Mr. Yokley : Yes, sir. I would like for the record to show the Solicitor pointed him out.
Court: Objection Overruled. Let the record show that the Solicitor pointed to him and asked him if he was in the station or grocery store at the time.
Exception No. 5.”
At this point in the proceedings the solicitor had not even established that a crime had been committed. He was attempting to elicit evidence as to who was in the store at 7:30 on 20 November. It is true that 20 November is the date given in the indictment. No time is indicated. It is also obvious that it was necessary for the solicitor to ask leading questions of this particular witness. Whether counsel is to be permitted to ask leading questions is within the discretion of the trial tribunal. McKay v. Bullard, 219 N.C. 589, 14 S.E. 2d 657 (1941). The defendant did not request a voir dire and the court did not, on its own noting, conduct one. Nor was a voir dire examination necessary. The witness had not attempted to identify defendant or anyone else as a person who had committed a crime or even one charged with the commission of a crime. The principles enunciated in U. S. v. Wade, 338 U.S. 218, 87 S.Ct. 1926, 18 L. Ed. 2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed. 2d 1178 (1967) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed. 2d 1199 (1967), relied upon by defendant are not applicable, because the facts here do not present a case which falls within the rationale of those cases. This assignment of error is also overruled.
Defendant, by his third assignment of error, contends that the trial tribunal committed prejudicial error by failing to submit to the jury the lesser included offense of larceny of property of a value of less than $200. “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The -presence of such evidence is the determinative factor.” State v. Williams, 275 N.C. 77, 88, 165 S.E. 2d 481,
Defendant’s remaining assignments of error are to the charge of the court. The portions of the charge to which defendant excepts could not have mislead the jury nor confused them and therein we find no prejudicial error.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.