State v. Walker , 34 N.C. App. 271 ( 1977 )

MARTIN, Judge.

Defendant contends that the court erred in denying the defendant’s motion to dismiss for failure of the indictment to charge a crime under G.S. 14-34.1 in that the indictment failed to state that the defendant knew or should have known that the trailer was occupied by one or more persons. He cites State v. Williams, 284 N.C. 67, 199 S.E. 2d 409 (1973) as authority for this contention. We must disagree.

We note at the outset that, regarding the sufficiency of indictments, our Supreme Court held in State v. Greer, 238 N.C. 325, 328, 77 S.E. 2d 917, 920 (1953) that

“The general rule in this State ... is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words. [Citations omitted.] This rule does not apply where the words of the statute do not, without uncertainty or ambiguity, set forth all the essential elements necessary to constitute the offense sought to be charged in the indictment, so as to inform the defendant of the exact charge of which he is accused to enable him to prepare his defense, to plead his conviction or acquittal as a bar to further prosecution for the same offense, and upon conviction to enable the court to pronounce sentence. In such a situation the statutory words must be supplemented in the indictment by other allegations which explicitly and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds of the accused and the court as to the specific offense intended to be charged. However, it is neither necessary to state particulars of the crime in the meticulous manner prescribed by common law, nor to allege matters in the nature of evidence.” [Citations omitted.]

And to the same effect, Justice Moore in State v. Russell, 282 N.C. 240, 243, 192 S.E. 2d 294, 296 (1972) stated:

“The purpose of an indictment ‘is (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; (2) to enable the court to know what judgment to pronounce in case of conviction.’ ” [Citations omitted.]

In the Williams case cited by defendant, the Court held that

“. . . [A] person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.” (Emphasis in original.)

Thus, apparently relying on the rule stated above in Greer— without citing any authority — defendant now contends that the construction placed on G.S. 14-34.1 by the Court in Williams requiring the accused to possess actual or constructive knowledge of the occupancy of the structure into which the firearm was discharged is an “essential element” which must be alleged in the indictment to constitute the offense sought to be charged.

After carefully reviewing the sound principles enunciated in the Greer and Russell cases, we find no merit in defendant’s interpretation of the effect of Williams on the case at bar. We think the holding in Williams pertaining to the accused’s knowledge of occupancy relates to evidence required at trial and not to allegations required in the bill of indictment. See State v. Greer, supra. Consequently, we hold that an indictment under 6.S. 14-34.1 which, as in the instant case, charges the offense substantially in the words of the statute, contains allegations sufficient to apprise an accused of the offense with which he is charged and to enable the court to proceed to judgment.

Defendant’s next contention relates to the admission of certain testimony by a State’s witness tending to connect defendant with the commission of the crime. Over defendant’s objection, and for the purpose of corroborating the testimony of Tony Adams, the court permitted Deputy Robert George Wise to testify that Adams told him that defendant Jimmy Walker did the shooting into the trailer. Defendant assigns as error the admission of this testimony for the reason that the witness Adams had not, in fact, testified that he had made any such statement to Deputy Wise. This assignment of error is overruled upon the authority of State v. McLawhorn, 270 N.C. 622, 155 S.E. 2d 198 (1967), and State v. Brown, 249 N.C. 271, 106 S.E. 2d 232 (1958), cases which hold, pertinent to the case at bar, that it is competent to corroborate the testimony of a witness by showing that he previously made a statement regarding the subject transaction consistent with such testimony.

In the instant case, Tony Adams testified that he observed the defendant discharging some kind of a rifle or shotgun at the trailer from the passenger side window of an automobile. Deputy Wise later testified that Tony Adams told him that he recognized the defendant shooting into the trailer from the automobile. The statement made by Adams to Wise and testified to by the witness Wise was consistent with the testimony of the witness Adams at trial and therefore, competent.

Defendant finally contends that the court committed error in failing to suppress evidence of a cartridge shell found on the floorboard of an automobile operated by defendant’s wife and in which the defendant was a passenger. Defendant argues that not having obtained permission to search the automobile from the owner or operator made the search unreasonable and unconstitutional.

On voir dire the court found that the search of the automobile was with the voluntary consent of defendant and was in no way coerced. Findings of fact of the trial court on voir dire are conclusive when supported by competent evidence. State v. Little, 270 N.C. 234, 154 S.E. 2d 61 (1967). The defendant alone was involved here, not the owner of the automobile or the operator. “The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures.” State v. Craddock, 272 N.C. 160, 169, 158 S.E. 2d 25, 32 (1967). A person may waive his right to be free from unreasonable searches and seizures. State v. Little, supra. Accordingly, this assignment of error is overruled.

We have carefully reviewed defendant’s remaining assignments of error and find them to be without merit.

In the trial we find no prejudicial error.

No error.

Judges Britt and Hedrick concur.