#### STATE v. WILLIAM DAVIS HAM, THURMAN HARDY, and RAYMOND HARDY.

(Filed 22 March, 1944.)

1. Criminal Law § 521b—

On the trial of several defendants, upon an indictment for robbery,, where the evidence against one of the defendants raises no more than a suspicion of his guilt, a motion to dismiss as to such defendant should be allowed. G. S., 15-173.

2. Evidence § 15—

Variance, or lack of definiteness and positiveness, on cross-examination of a witness, affects only the credibility of the witness, and of this the jury is the judge.

3. Criminal Law § 29e—

In a prosecution for robbery evidence of prosecutrix, that she “thought" or “reckoned” defendants were trying to borrow considerable sums from her shortly before the robbery, was competent to show motive and knowledge of defendants.

4. Criminal Law § 31a—

To the rule that opinion evidence is incompetent there are, at least, three exceptions: First, opinions of experts; second, opinions on the question of identity; and third, opinions received from necessity, where no better evidence can be obtained.

5. Criminal Law § 30—

G. S., 15-88, 15-91, and 15-100, making competent evidence on preliminary hearings reduced to writing by the magistrate, are an extension of the common law rule .and such testimony, when properly taken, may be read in evidence on mere identification.

6. Same—

The testimony of a witness, stenograpliically taken at a *habeas corpus*proceeding before the trial of defendants, may be received as evidence on their subsequent trial upon indictment, the witness in the meantime having become insane, when its correctness is testified to by the official stenographer who took and transcribed it, and there is no suggestion that the record thereof is not full and accurate.

7. Criminal Law § 29e—

On a trial upon an indictment for robbery from the person of a woman, evidence that one of defendants was heard to say some time before the alleged robbery, in a conversation relative to other robberies, that he knew an old woman who kept money tinder her dress, *held*competent.

*1298. Criminal Haw § 41e: Trial § 17—

‘ Where evidence, competent only for the purpose of corroborating a witness, is admitted generally without objection, there is no error in the court’s failure to so restrict it.

9. Criminal Haw § 8—

Where two defendants go into a house and rob a person, while a third remains outside in an automobile, parked near-by for the purpose of aiding and abetting the two in getting away and sharing the money with them, all are equally guilty as principals.

Appeal by defendants from *Williams, J.,*at December Term, 1943, of JOHNSTON.

Tbe defendants were convicted of robbery of one Ardella Evans committed on tbe first day of October, 1943. With tbe appellants Ernest Evans was charged in tbe bill of indictment, but in tbe course of tbe trial tbe solicitor for tbe State took a *nól. pros,*as to bim.

From judgment of imprisonment predicated upon a jury verdict of guilty of robbery tbe defendants 'William Davis *(alias*Jack) Ham, Tburman Hardy and Raymond Hardy appealed to tbe Supreme Court, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-Generad Patton and Rhodes for the State.*

*Edward G. Hobbs and Olaude C. Canaday for defendants, appellants.*

ScheNck, J.

Tbe first exceptive assignments of error set out in tbe appellants’ brief are those numbered one and two and are to tbe court’s refusal to allow tbe defendants’ motion to dismiss tbe action or for judgment of nonsuit lodged when tbe State bad produced its evidence and rested its case and renewed after- all tbe evidence in tbe case was • concluded (G. S., 15-173). We are constrained to sustain these assignments in so far as they relate to tbe defendant Raymond Hardy, since tbe evidence raises no more than a suspicion of bis guilt. Tbe assignments in so far as they relate to William Davis *(alias*Jack) Ham and Tbur-man Hardy are not sustained, since tbe testimony of tbe prosecuting witness Ardella Evans was to tbe effect that she was robbed of between five and six thousand dollars by two men who came to her bouse on tbe night, or late evening, of tbe first day of October, 1943; that one of tbe men held her while tbe other took tbe money from a pocket or bag attached to her slip; that tbe man who held her was tbe taller of tbe two, and tbe man who actually took tbe money off of her person was tbe shorter; that tbe two men she subsequently saw in tbe jail were tbe two men who robbed her, and that these two men were Jack Ham and Tbur-*130man Hardy, two of the defendants. The fact that there may have been some variance or lack of definiteness and positiveness in her testimony bn cross-examination could only affect the credibility of her testimony, and of this the jury were the sole judges. *S. v. Smoak,*213 N. C., 79, 195 S. E., 72.

Assignments of error 5 and 6 are to certain testimony of the prosecuting witness Ardella Evans to the effect that she did “reckon” the defendants “were trying to borrow money” from ber, and that they “were trying to borrow some” at the time they carried her to the show, and that she “thought” they tried to borrow $300.00 the first time, and she “reckoned” they wanted to borrow $750.00 the second time. The appellants contend that this testimony was incompetent for the reason that it was indefinite and not clear, and speculative, and against the interest of the appellants. ’With this contention we do not concur. How much weight should be given to the testimony was for the jury. The testimony was competent to show a motive in that it tended to show the defendants knew the prosecuting witness had the money and that the defendants were in need of money. *S. v. Cain,*175 N. C., 825, 95 S. E., 930.

Assignments of error 7 and 8 are to certain evidence relative to the physical and mental condition of one Ernest Evans offered for the purpose of showing that the said Ernest Evans was unable to attend court and testify and thereby render competent in this trial his testimony theretofore taken in a *habeas corpus*proceeding instituted by the defendants in this case. The first evidence assailed being the testimony of Dr. E. N. Booker, an admitted medical expert, to the effect that Ernest Evans was not, in his opinion, able to attend court, and the second evidence assailed being the testimony of Lester Hales to the effect that Ernest Evans “lost his mind or something.” We think both the testimony of Hr. Booker and of Lester Hales falls within the well recognized exceptions to the rule rendering opinion evidence incompetent. “To the general rule that the opinion evidence is incompetent there are three, at least, well recognized exceptions: First: opinions of experts; second, opinions on the question of identity; and third, opinions received from necessity, *i.e.,*when from the nature of the. subject under investigation, no better evidence can be obtained.” *S. v. Harris,*213 N. C., 648, 197 S. E., 156; *S. v. McLaughlin,*126 N. C., 1080, 35 S. E., 1037. We are of the opinion that the testimony of Dr. Booker falls within the first exception and that of the witness Hales within the third. These assignments are therefore untenable.

Assignment of error No. 13 relates to the introduction by the State of the testimony of Ernest Evans, taken at the *habeas corpus*proceeding before the trial of this case, over the objection of the defendants.

*131In speaking of the effect of our statutes (formerly 0. S., 4560, 4563, and 4572, now G. S., 15-88, 15-91, and 15-100) making competent evidence of testimony reduced to writing by magistrates upon preliminary hearings upon the common law rule, *Hoke, J.,*in *S. v. Maynard,*184 N. C., 653, 113 S. E., 682, says: “But a proper perusal of this legislation will disclose that the same is in extension of the common-law principle which we are considering, that its purpose was to make these preliminary examinations, when properly taken, certified, and filed, in the nature of an official record, to be read in evidence on mere identification, and that it does not and was not intended to restrict or trench upon the common-law principle that evidence of this kind, when repeated by a witness under proper oath, and who can and does swear that his statements contain the substance of the testimony as given by the dead or absent witness, shall be received in evidence on the second trial. And well considered authority is to the effect that stenographers’ notes, when the stenographer who took them goes on the stand and swears that they are accurate and correctly portray the evidence as given by the witness, come well within the principle.” The distinguished Justice also quotes with approval from *Mattox v. U. S.,*156 U. S., 237, as follows: “That all the authorities hold that a copy of stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, is competent evidence of what he said,” and also cites *Settee v. R. R.,*171 N. C., 440, 88 S. E., 734, where it is written: “The testimony of a witness steno-graphically taken at a former trial, who is absent from the State under such circumstances that his return is merely contingent or conjectural, may be received as evidence on a subsequent trial of the same cause of action when its correctness is testified to by the official stenographer who took and transcribed it, and there is no suggestion that the record thereof was not full and entirely accurate.” Mrs. Carrie Speight Edwards testified: “I am Court Reporter for Johnston County, and took the evidence in the *habeas corpus*proceeding in this matter. The book handed me is a true transcript of the evidence as taken by me. The testimony of Ernest Evans begins on page 71, and is a true copy of this evidence as taken by me. He was cross-examined by counsel for the defendants.” It would seem that the requirements of the common law rule as applied by us were met in this case and there was no error in the admission in evidence of the testimony of the witness Ernest Evans as stenographically taken at the *habeas corpus*proceeding and as transcribed and identified under oath by the reporter who took it, and we so hold.

Assignments of error 14 and 15 are to the admission in evidence of the testimony of Erwin Alexander over the objection of defendants and the refusal of the court to strike such testimony upon motion so to do. *132Tbe testimony involved was to tbe effect tbat tbe witness bad beard Jack Ham, one of tbe defendants, some time before tbe alleged robbery was committed, say in a conversation relative to recent robberies in tbe community tbat be knew an old woman wbo bad some money and was keeping it under ber dress. Tbis evidence was competent as tending to show tbat tbe defendant Ham knew tbe prosecutrix bad money and kept it under ber dress, of wbicb money sbe was subsequently robbed. Tbis was a circumstance, wbicb standing alone may not bave bad any potency, but wben considered in connection witb all tbe other circumstances appearing in tbe evidence may not bave been entirely feckless. In criminal cases every circumstance calculated to throw any light upon tbe supposed crime is permissible. *8. v. Payne,*213 N. C., 719, 197 S. E., 573, and cases there cited. These assignments cannot be sustained.

Assignment of error No. 18 is directed to tbe failure of tbe court to instruct tbe jury tbat certain testimony of Sheriff K. L. Bose was competent only for tbe purpose of corroborating tbe witness Ernest Evans. Tbis assignment is untenable for tbe reason that the appellant did not ask, at tbe time of tbe admission of tbe evidence, tbat it be restricted to the purpose for wbicb it was competent. Bule 21, Buies of Practice in tbe. Supreme Court, 221 N. C., 558; *8. v. Tuttle,*207 N. C., 649, 178 S. E., 76; *S. v. McKinnon,*223 N. C., 160, 25 S. E. (2d), 606, and cases there cited.

Assignment of error No. 19 is to an excerpt from tbe charge reading: “In tbat connection I charge you tbat if you find beyond a reasonable doubt tbat two of tbe defendants went in tbe borne of Miss Evans and seized ber and held ber by force and violence, one bolding ber while another feloniously took from ber person a sum of money witb intent to appropriate it to their own use, and while so doing another was out in an automobile parked near there for tbe purpose of aiding and abetting them in getting away and getting gone witb tbe money, it would be your duty to return a verdict of guilty as to all, because in tbat instance all would be principals and all would be equally guilty.” Tbe appellants in their brief contend that tbe three “defendants would not be guilty as principals in equal degree of tbe crime” and “insist tbat to aid and abet in escaping from tbe commission of tbe crime would not constitute a 'person guilty of tbe original crime committed.” *~We*see no error in the charge as quoted, but if tbe objection of tbe appellants to tbe charge be limited to tbe defendant wbo is alleged to bave remained in the automobile to carry bis codefendants away after tbe robbery bad been perpetrated, any error therein is rendered harmless since we bave reversed tbe judgment of tbe trial court in so far as it related to this defendant, Baymond Hardy, whom tbe State contended was aiding and abetting by being present in a waiting automobile for tbe purpose of accomplishing an escape.

*133Assignments of error 3 and 4 are formal and relate to tbe court’s refusal to set tbe verdict aside and for a new trial for errors committed in tbe course of tbe trial, and to tbe judgment. All of. tbe assignments of errors bave been discussed *seriatim,*as tbey are set out in appellant’s brief and in tbem we find no prejudicial error as to tbe defendants William Davis *(alias*Jack) Ham and Tburman Hardy.

Since we are of tbe opinion that tbe evidence was insufficient to carry tbe ease to tbe jury as to tbe guilt of Raymond Hardy tbe judgment as to bim is reversed.

As to defendant "William Davis *(alias*Jack) Ham and defendant Tburman Hardy, no error.

As to defendant Raymond Hardy, reversed.