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280 N.C. 491

186 S.E.2d 369

State v. Crump

Supreme Court of North Carolina

Decided February 9, 1972

Supreme Court of North Carolina · decided 1972-02-09

1. Criminal Law 68, 79; Kidnapping 1 — statements in furtherance of common design — competency against all defendants — testimony placing kidnappers and victim together In this kidnapping prosecution, testimony that one of the defendants asked the victim "if he had any jumping cables and would help start their car," and also asked the victim if he could take his car, held competent against both defendants, notwithstanding the witness testified that she did not know which defendant made the statements, since defendants were jointly engaged in an illegal mission and the statements were made in furtherance of a common design, and since the testimony was relevant on the question of identity in that it placed the kidnappers and their victim together at the time and place in question. 2. Criminal Law 73, 81 — hearsay evidence — best evidence rule Testimony by a kidnap victim that he had told a police officer that he could recognize the kidnappers was not hearsay and did not violate the best evidence rule. 3. Kidnapping 1 — sufficiency of evidence The State's evidence supports the jury's verdict finding the defendant guilty of kidnapping and judgment pronounced thereon.

Cited by 12 later decisions — most recently July 1976

12 state decisions

Relies on State v. Sanders · State v. Murphy · State v. Ingland

Good law ✅— No negative treatment on recordhow we know

Decided 1972-02-09

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*493 HUSKINS, Justice.

¶1 Mrs. Andrews was allowed to testify over objection: “I had never seen the boys before, but anyway in the conversation, they asked Michael, one of them, I don’t know which, — if he had any jumping cables and would help them start their car. I told Michael it was too near time to close and he had too much work to do to leave.” At another point in her testimony, she said over objection: “I don’t know which one said it . . . but one said, ‘Michael, can you take your car?’ ” Defendant’s first assignment of error is predicated on the admission of this evidence. He contends it was incompetent “absent a finding of conspiracy.”

¶2 The evidence shows that this defendant and Edward Scott were jointly engaged on an illegal mission. They were acting in unison in furtherance of a common design. The evidence gives rise to the permissible inference that they had conspired together to rob Mrs. Andrews and the kidnapping of Michael Penland was necessary to accomplish that objective — they needed transportation. Therefore, statements made in furtherance of the common design, whether by the defendant or his partner in crime, are competent. State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970). Moreover, the evidence objected to was relevant on the question of identity since it placed the kidnappers and their victim together at the time and place in question. “Any evidence which is relevant to the trial of a criminal action is admissible.” State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971). Furthermore, Michael Penland testified substantially to the same effect without objection, and the admission of this evidence from Mrs. Andrews was largely cumulative and could not have changed the result of the trial. An appellant must show that evidence alleged to be erroneous was prejudicial and that a different result but for the error would have likely ensued. State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364 (1963); State v. Sanders, supra. We hold the evidence was competent. Had it been incompetent, its admission would have been entirely harmless. Stansbury, North Carolina Evidence (2d Ed.) § 9.

¶3 Included as part of defendant’s first assignment of error is the following question propounded to Michael Penland on direct examination and his answer thereto over objection:

*494 “Q. Did you tell DeBois Edmundson whether or not you could recognize the two men who had been in your car during the course of that night?
“A. Yes, sir.”

¶4 Defendant contends such testimony violates the hearsay rule and the best evidence rule. Michael Penland’s testimony as to what he told Officer Edmundson is the best evidence, and the officer’s testimony would have been competent only to corroborate what the victim told him. Furthermore, the testimony is not hearsay. Its probative force does not depend upon the competency and credibility of any person other than the witness himself. Hence it cannot be classified as hearsay. Stansbury, North Carolina Evidence (2d Ed.), Hearsay, § 138. We find no merit in any of the three exceptions upon which the first assignment of error is based.

¶5 Defendant’s remaining assignments are formal and require no discussion. The uncontradicted evidence proves kidnapping beyond a reasonable doubt, State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577 (1971); State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845 (1971), and supports the verdict and judgment. The only error appearing in this record was committed by the defendant and his partner in crime when they embarked upon their unlawful mission which culminated in the kidnapping of Michael Penland.

¶6 In the trial below we find

¶7 No error.

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