State v. Mitchell , 29 N.C. App. 4 ( 1976 )

VAUGHN, Judge.

These appeals are subject to dismissal for failure to docket within the time allowed. We have, nevertheless, elected to consider them on their merits.

The evidence is clearly sufficient to permit the jury to find that the drugs Brooks took from the trailer had been placed there by Whitaker. His case was properly submitted to the jury. We have considered Whitaker’s remaining assignments of error and find them to be without merit.

In the absence of Mitchell’s declaration to Brooks, “We have got to have the stuff back,” while looking at the bags of marijuana in Brooks’ pocket, the evidence would have been insufficient to take his case to the jury. This statement, however, when coupled with all of the other circumstances made a case for the jury. The jury could infer that Mitchell was referring to the marijuana and that if “We have got to have” the marijuana back, “we” must have had it before.

We hold that the court erred, however, in excluding testimony from Mitchell whereby he attempted to explain what he meant when he told Brooks “We have to have it back.” His explanation would have been that items of personal property were missing from the apartment, he suspected Brooks as being the thief, and that it was the stolen property to which he referred and not the marijuana of which he knew nothing. His explanation raised a question of credibility which the jury should have been allowed to resolve.

On defendant Whitaker’s appeal — No error.

On defendant Mitchell’s appeal — New trial.

Judge Martin concurs. Judge Clark dissents.