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North Carolina v. Young

Filed: November 3, 1981.

STATE OF NORTH CAROLINA
v.
ROBERT EDWARD YOUNG



Appeal by defendant from Clark, Judge. Judgment entered 26 November 1980 in Superior Court, Wake County. Heard in the Court of Appeals 2 September 1981.

Martin (Robert M.), Judge. Judge Martin (Harry C.) concurs. Judge Becton dissents

Martin

The defendant first argues that his conviction for larceny from the person is invalid because that offense is not a lesser included offense of common law robbery governed by N.C. Gen. Stat. ยง 15-170. We disagree.

While larceny from the person does carry the same penalty as common law robbery, the North Carolina courts have treated larceny from the person as a lesser included offense. See State v. McLawhorn, 43 N.C. App. 695, 260 S.E.2d 138 (1979), disc. rev. denied 299 N.C. 123, 261 S.E.2d 925 (1980). In State v. Kirk, 17 N.C. App. 68, 193 S.E.2d 377 (1972), the prosecuting witness was working as a gas station attendant one night, and while pumping gas for a customer, the customer exited his car, went behind the prosecuting witness, removed a billfold containing money from the prosecuting witness' hip pocket, and ran down the street. The victim called for the wrongdoer to stop, but to no avail. The Court expressly stated that larceny from the person is a lesser included

offense of common law robbery. Id. at 70, 193 S.E.2d 379. Thus defendant's assignment of error is without merit and is overruled.

The defendant next contends that the trial judge erroneously admitted into evidence testimony that defendant identified himself to police by giving two false names following his arrest. The defendant argues that (1) his utterance was the product of an unlawful arrest made pursuant to an arrest warrant which did not adequately identify the defendant and (2) testimony concerning this utterance was erroneously admitted because of the absence of a showing that defendant had been informed of his Miranda rights prior to making the statement.

Considering the first contention, it is true that a warrant must clearly and positively identify the person charged with the commission of an offense. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Nonetheless a description of an accused in a warrant by whatever alias names he may have been known to use, if done in good faith, is proper. State v. Culp, 5 N.C. App. 625, 169 S.E.2d 10 (1969). In this case none of the State's witnesses knew the defendant's real name at the time of arrest. Danny Sanders, however, did identify the defendant as the thief but mistakenly believed the defendant's nickname to be "Shank." Accordingly the arrest warrant was issued for "Shank" while the defendant's nickname was "Chink."

The names "Chink" and "Shank" sound sufficiently similar to invoke the doctrine of idem sonans. The doctrine of idem sonans has been applied in the North Carolina cases of State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515 (1950), where there was a variance between the defendant's name "Sawyer" and the name of "Swayer" which appeared in the warrant, and State v. Vincent, 222 N.C. 543, 23 S.E.2d 832 (1943), where the defendant's actual name was "Vincent," yet the name "Vinson" appeared in the indictment. In both of these cases, the Supreme Court noted that the respective defendants could not be heard to claim that they were not adequately identified in the arrest warrants at issue. Furthermore, the defendant waived any objection to the misnomer appearing in the warrant by pleading not guilty and going to trial on the merits of the case. State v. Sawyer, supra; State v. Ellis, 200 N.C. 77, 156 S.E. 157 (1930).

In addition the defendant argues that his statement was improperly admitted in light of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Miranda warnings are only required when a defendant is being subjected to custodial interrogation. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). The mere asking of the defendant's name did not constitute interrogation. Thus no Miranda warnings were required.

In State v. Phillips, 37 N.C. App. 202, 245 S.E.2d 587 (1978), a police officer's inquiry as to whether an arrested defendant knew "what was going on" did not constitute custodial interrogation. Similarly, other jurisdictions have ruled that the preliminary questions asked during the booking procedure such as name, address, place of employment, age and other routine background inquiries did not constitute custodial interrogation. People v. Hernandez, 263 Cal. App. 2d 242, 69 Cal. Rptr. 448 (1968), People v. McIntosh, 53 Ill. App. 3d 958, 369 N.E. 2d 217 (1977), Clarke v. State, 3 Md. App. 447, 240 A. 2d 291 (1968).

We do not think that testimony concerning defendant's false identification was improperly admitted. Even if there had been error in the admission of the statement, it would not have been prejudicial since there is no reasonable possibility that it would have contributed to Young's conviction. We believe that the admission of the statement if erroneous would have been harmless beyond a reasonable doubt. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). Defendant's assignments of error are without merit and are overruled.

The defendant also alleges that the admission of evidence relating to the street price of marijuana was error in that the evidence was irrelevant and prejudicial. ...


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