State v. Harvey
State v. Harvey
Opinion
The defendants submit that the admission of this testimony was error for the reason that the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. With this general proposition we agree. However, where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1950). In State v. Biggs, 224 N.C. 722, 32 S.E. 2d 352 (1944), defendants were charged with first-degree murder. The evidence established that when the defendants entered the victim’s store, the victim’s wife and a customer were present. After asking for change for a dollar and some matches, the defendants drew pistols and informed the victim of the hold-up. As the victim then leaned down below the counter, he was fatally shot. The two defendants fled from the store and were seen by two witnesses coming across the street and getting into a blue Ford. Each witness saw the defendants clearly as they passed within ten feet of them. Another defendant was identified as sitting behind the wheel of the Ford awaiting the other two. Evidence was then introduced over objection that these same three defendants, twenty-seven days after the alleged murder, were observed driving the same blue Ford and shortly thereafter were observed entering a filling station and with *719 pistols robbing the proprietor of $140. The Supreme Court ruled the evidence admissible and competent to show the identity of the persons and the crime under an exception to the general exclusionary rule. We are unable to distinguish the present case from the Biggs case. Here much significance was attached to the green car with New Jersey license plates, which led to the apprehension of the defendants. Consequently, the evidence that the defendants, between the time of the crime charged and their apprehension, committed a robbery utilizing a pistol and driving a green car with New Jersey license plates was relevant and admissible for purposes of identification in view of their defense of alibi.
The defendants further complain that even if the evidence was admissible, they were prejudiced by the failure of the trial court to limit its admissibility to its proper purpose. However, at no place in the record does it appear that the defendants requested such an instruction. Under the well-recognized rule, if evidence is competent for one purpose only and not for another, it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent. State v. Goodson, 273 N.C. 128, 159 S.E. 2d 310 (1968) ; State v. Alexander, 16 N.C. App. 95, 191 S.E. 2d 395, cert. denied, 282 N.C. 305, 192 S.E. 2d 195 (1972) ; and 2 Strong, N. C. Index 2d, Criminal Law, § 95 (1967). In view of the foregoing, this assignment of error is overruled.
In the case at bar, in the title of the case following the name of the defendant Henry, the words “also known as Lee Nelson” appear. There was also evidence, without objection, of the alias. It does not appear that at any time before or during trial the defendant moved to strike the alias from the title or objected to the use of the alias by the District Attorney or the trial judge. Where in the title of the case or during trial an alias is used, if the defendant considers it prejudicial, he has the burden of making a timely motion or objection so that the trial court may take appropriate action; and his failure to do so constitutes a waiver. Too, in this case no prejudice is shown because the use of the alias was justified by the evidence.
We find
No error.
Reference
- Full Case Name
- STATE OF NORTH CAROLINA v. BRUCE ALVIN HARVEY and ROLAND HENRY, Also Known as LEE NELSON
- Cited By
- 4 cases
- Status
- Published