25 N.C. App. 10 | N.C. Ct. App. | 1975
Prior to trial defendant made several written motions. He moved that the charges be dismissed because his request to be put in a cell with Gibson had been denied, because the prison authorities had not prevented Gibson from committing suicide, and because he had been denied his request to have a court reporter record the testimony at his preliminary hearing. The record discloses that defendant was placed in jail on 25 March 1974 and called District Court Judge Dale requesting the appointment of counsel and a hearing on bond reduction. Judge Dale appointed counsel and had a hearing on defendant’s request for a court reporter to record the testimony at his preliminary hearing. The court denied the request stating that the recording system used in Juvenile and Domestic Relations Court would be made available and directed that the preliminary hearing be set at the earliest practicable time. These entries were made 28 March 1974, only three days after defendant’s arrest. Subsequently, defendant wrote the judge expressing dissatisfaction with his appointed counsel and requesting that he be released and that the court appoint another lawyer. The court complied with the request as to appointment of another lawyer. On 22 April 1974, defendant wrote the judge requesting that he be confined in a cell with Gibson so they could prepare their joint defense. On 13 May 1974, defendant waived preliminary hearing and the judge bound him over for trial. On 28 May 1974, defendant filed a written motion requesting dismissal of the charge. In this motion, he recites that on 6 May 1974 Gibson committed suicide in the Caldwell County jail. He abandons his contention that he should have been confined with Gibson to prepare their joint defense, and for the first time contends that Gibson would have testified that defendant was innocent and Gibson would have accepted the full blame for the breaking and entering and larceny and would have testified that the burglary tools were his. In this motion defendant says that the sheriff and jailers should have and could have prevented Gibson’s death and their failure to do so deprived defendant of his right to secure the attendance of a witness who possessed evidence favorable to defendant’s defense and that Gibson was the only person who could have exonerated defendant.
When defendant’s cases were called for trial, and after arraignment and plea, the court directed that the reporter let the record reflect that the court had thoroughly reviewed and
At the close of the State’s evidence and again at the close of all the evidence, defendant moved for dismissal as of nonsuit and brings forward his exceptions to the court’s denial of his motions. The evidence is plenary to survive the motions. These assignments of error are overruled.
Defendant also assigns as error the introduction into evidence of the burglary tools found in the drug store contending that they were not tied to defendant’s use of them to gain entry to the building. The evidence for the State placed defendant in close proximity to the tools. According to the State’s evidence, he ran and attempted to flee from the rear of the building and hid when this was not successful. The evidence was that entry had been gained to the building and to the narcotics cabinet by use of the tools found. It is difficult to see how the court could have failed to deny defendant’s objection to the introduction of these tools in evidence. It was not necessary that the State show that the tools were found in defendant’s actual possession. State v. Lovelace, 272 N.C. 496, 158 S.E. 2d 624 (1968). They were certainly relevant and admissible. The weight to be given the evidence was for the jury.
Finally, defendant contends the court committed prejudicial error in its charge to the jury. Even though defendant has failed to except properly to any portion of the charge, we have considered the charge and are of the opinion that the charge taken contextually and read as a whole fairly and clearly presents the law to the jury. We concede that at least one statement, read out of context and as an isolated statement, might be said to present an erroneous statement of the law. However, when considered in the context of the charge as a whole, it had no prejudicial effect and was, therefore, harmless error.
“ ‘The charge of the court must be read as a whole . . ., in the same connected way that the judge is supposed to have intended it and the jury to have considered it . . . .’ State v. Wilson, 176 N.C. 751, 97 S.E. 496 (1918). It will*14 be construed contextually, and isolated portions will not be held prejudicial when the charge as whole is correct. State v. Cook, 263 N.C. 730, 140 S.E. 2d 305 (1965); State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334 (1963) ; State v. Taft, 256 N.C. 441, 124 S.E. 2d 169 (1962). If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966).” State v. Lee, 277 N.C. 205, 214, 176 S.E. 2d 765 (1970).
These assignments of error are overruled.
Defendant’s remaining assignments of error are formal and have been discussed previously. They are overruled.
Defendant has had a fair trial, free from prejudicial error and wherein all rights guaranteed by the Constitution of this State and of the United States were protected.
No error.
