State v. Wilson , 14 N.C. App. 399 ( 1972 )

CAMPBELL, Judge.

The first assignment of error presented by the defendant is that it was error to permit the testimony of Mrs. Brent Smith that she heard the deceased state, “Spike, don’t shoot me. I ain’t done nothing to you — don’t shoot me. . . .” immediately before she heard a shot. We think this evidence was competent as part of the res gestae. State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909); Stansbury, N. C. Evidence, 2d Ed., § 164; 3 Strong, N. C. Index 2d, Evidence, § 35.

The defendant’s second assignment of error pertains to the testimony of Police Officer Wheless as to what the defendant told him on the night of the shooting when Officer Wheless first arrived at the apartment. There is no merit in this assignment of error for that the statement does not come within the Miranda doctrine (Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966)) as contended by the defendant. The statement was made by the defendant to Officer Wheless at a time when the defendant was not in custody and was not even suspected of having committed a crime. It was a part of the on-scene investigation, and this was clearly brought out on the voir dire examination. Furthermore, this statement was not admitted in evidence at that time, and the Court reserved its ruling on the admissibility thereof. After the defendant went on the witness stand and testified in his own behalf and admitted that he had made a statement to Officer Wheless on the night of the shooting, which was an incorrect and untruthful statement, Officer Wheless was recalled, and his testimony as to what the defendant told him on the night of the shooting was introduced in evidence in rebuttal. This evidence was competent even if the statement had been taken in an in-custodial situation (which it was not) as a prior inconsistent statement on the question of credibility. State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111 (1972).

The defendant in his third assignment of error asserts that the rifle was improperly admitted into evidence as an exhibit. The defendant asserts that the rifle was not found until the next day, which was some seven or eight hours after the shooting, and that this was entirely too remote. This assignment of error is without merit for that the defendant himself admitted that he flung the rifle into the backyard. A rifle was found in the backyard the next day some seven or eight hours after the shooting. The rifle was exhibited to the defendant at the police station and he testified that the rifle which he saw at the police station was his rifle and the one he had used. While he denied the rifle admitted in evidence at the trial was the same rifle, he did state that his rifle was similar to it, and the officers on behalf of the State testified that it was the same rifle they had found in the backyard. This evidence was competent.

The remaining assignments of error have all been considered, and we find them to be without merit.

There was ample evidence of the defendant’s guilt to go to the jury. The jury found the facts against the defendant after instructions from the trial judge, to which instructions no exception has been taken.

The defendant had a fair trial, and we find

No error.

Chief Judge Mallard and Judge Brock concur.