State v. Matthews , 20 N.C. App. 297 ( 1973 )

CAMPBELL, Judge.

We will treat the two appeals separately.

Collins’ Appeal

This appeal presents only the record for review. We have carefully examined the record, including the bill of indictment, plea and the judgment; and we find no prejudicial error appearing therein.

Matthews’ Appeal

There was plenary evidence when considered in the light most favorable to the State to take the case to the jury. There was no error in denying the defendant Matthews’ motion for nonsuit.

The defendant Matthews assigns as error the denial of his motion for a severance and mistrial on account of the incriminating statement made by the codefendant Collins.

The defendant relies upon the rule laid down in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968) and Roberts v. Russell, 392 U.S. 293, 20 L.Ed. 2d 1100, 88 S.Ct. 1921 (1968), reh. denied, 393 U.S. 899, 21 L.Ed. 2d 191, 89 S.Ct. 73 (1968). We do not think the Bruton rule is controlling in the instant case. The statement objected to in the instant case was made in the presence of the defendant Matthews when they were both in the same cell and with each other. State v. Bryant, 250 N.C. 113, 108 S.E. 2d 128 (1959). In State v. Fox, 274 N.C. 277, 291, 163 S.E. 2d 492, 502 (1968), the North Carolina Supreme Court, in discussing the Bruton rule, stated:

“ . . . The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra), and (2) that the declarant will not take the stand. ...”

In the instant case the declarant Collins did not take the stand; but since under the rule of State v. Bryant the confession was admissible, the Bruton rule does not apply. Furthermore, any incrimination of Matthews by the statement attributed to Collins was of insignificant probative value in relation to the mass of competent and admitted evidence against Matthews. State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972).

The charge to the jury was unexcepted to and not in the record. It is therefore presumed to be adequate, fair and nonprejudicial.

In the trial of Matthews we find no prejudicial error.

Collins no error.

Matthews no error.

Judges Hedrick and Baley concur.