State v. Williams , 24 N.C. App. 554 ( 1975 )

CLARE, Judge.

A city policeman testified that he was present when the defendant was booked and that the defendant gave his name as Leon Williams, but that it was later determined that the defendant’s fingerprints matched those of Daniel McNeil, an escapee from Davie County. The officer further testified that' after being advised of this information, the defendant stated to him that his name was Daniel McNeil and that he had escaped.

The admissiblity of this evidence of the defendant’s escape is the only assignment of error which merits consideration by the Court.

The evidence appears in the record in narrative form and does not disclose whether the challenged testimony was in response to a specific and relevant question. But no objection, no motion to strike, and no motion for mistrial was made. Nevertheless, on both occasions after the witness stated that the defendant- was an escapee, the trial judge instructed the jury to disregard and not consider the statement.

Generally, such evidence of separate and independent crimes is inadmissible to prove the guilt of a person on trial. However, such evidence is admissible for other purposes when it meets the tests of relevancy and materiality. 1 Stansbury, N. C. Evidence, .§ 91 (Brandis Rev. 1973). This evidence relating to escape became relevant and material for the purpose of establishing1 identity and to explain the defendant’s alias after he gave a false name to the booking officer. State v. Perry, 275 N.C. 565, 169 S.E. 2d 839 (1969) ; State v. Williams, 276 N.C. 703, 174 S.E. 2d 503 (1970) ; State v. Engle, 5 N.C. App. 101, 167 S.E. 2d 864 (1969).

The burden was on the defendant to request instructions limiting jury consideration to the purposes for which it was competent. State v. Norkett, 269 N.C. 679, 153 S.E. 2d 362 (1967) ; State v. Hardee, 6 N.C. App. 147, 169 S.E. 2d 533 (1969) ; State v. Rhodes, 10 N.C. App. 154, 177 S.E. 2d 754 (1970). But here the trial judge, ex mero motu, withdrew the evidence from jury consideration for any purpose and instructed the jury not to consider it, which ordinarily is sufficient to cure error in all but exceptional circumstances. State v. Carnes, 18 N.C. App. 19, 195 S.E. 2d 588 (1973).

Further, this claim of error cannot be sustained because the defendant’s failure to object or to move to strike the evidence relating to the escape constituted a waiver. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970) ; State v. Crouse, 22 N.C. App. 47, 205 S.E. 2d 361 (1974).

No error.

Judges Britt and Morris concur.