State v. Cleary, 9 N.C. App. 189

9 N.C. App. 189 | N.C. Ct. App. | 1970

Mallard, C.J.

Defendant’s counsel at the trial in the superior court was permitted to withdraw after the completion of the trial, and the above-named counsel was appointed to perfect this appeal. From the record in this case, it appears that defendant was ably represented by court-appointed counsel both in this court and at the trial in the superior court.

Defendant assigns as error the failure of the trial judge to allow his motion for judgment of nonsuit. The defendant and Sebón Johnson (Johnson) were both charged in the same indictment. Upon motion of the State, the defendant was the only one tried. Together with other witnesses, Johnson was used by the State as a witness against the defendant. Recapitulation of the evidence is not deemed necessary. There was ample evidence of the defendant’s guilt to require submission of the case to the jury.

Defendant assigns as error certain portions of the charge of the court and also contends that the court failed to properly instruct the jury in other respects. We have considered each of these assignments of error. When the record, evidence, and charge are read and considered together, no prejudicial error is made to appear. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966).

At the time of the oral argument in this court, defendant filed a motion in arrest of judgment. Defendant asserted that the bill of indictment upon which the defendant was tried was defective because the identity of the building alleged to have been broken and entered was not alleged with sufficient particularity. The bill of indictment charged that the premises broken and entered was a “certain storehouse, shop, warehouse, dwelling house and building occupied by one Clarence Hutchens” in Wilkes County. The better practice would be for the prosecuting officers, in preparing bills of indictment, to identify the location of the subject premises by street address, rural road address, or some other clear description and designation. However, we hold that under the authority of State v. Burgess, 1 N.C. App. 142, 160 S.E. 2d 105 (1968), and State v. Sellers, 273 N.C. 641, 161 S.E. 2d 15 (1968), the first count in the bill of indictment is sufficient in this case to charge the felony of breaking and entering.

Defendant also included in the motion in arrest of judgment a motion to quash the bill of indictment. Defendant asserts that he was tried upon “a bill of indictment in conformity with the law of breaking and entering as it existed prior to May 23, 1969, and not in conformity with the provisions of G.S. 14-54 as it existed on and after May 28, 1969.”

G.S. 14-54 as it “existed on and after May 23, 1969” reads as follows:

“Breaking or Entering Buildings Generally. — (a) Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2.

(b) Any person who wrongfully breaks or enters any building is guilty of a misdemeanor and is punishable under G.S. 14-3 (a).

(c) As used in this section, ‘building’ shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.”

While the first count in the bill of indictment in this case is not considered a model one, we are of the opinion that it sufficiently charges the felony of breaking and entering in violation of G.S. 14-54 as “it existed on and after May 23, 1969.” The case of State v. Melton, 7 N.C. App. 721, 173 S.E. 2d 610 (1970), cited by defendant in support of his contentions, is not in conflict with this holding. The motions of the defendant to quash the bill of indictment and in arrest of judgment are overruled.

The second count in the bill of indictment is not sufficient to charge the defendant with the felony of larceny but is sufficient to charge the defendant with the misdemeanor of larceny. The value of the property alleged to have been stolen was $100.00. The larceny of property, nothing else appearing, of the value of “not more than two hundred dollars” is a misdemeanor. G.S. 14-72. In order to properly charge the felony of larceny of property, without regard to the value of the property, the bill of indictment must contain one or more of the elements set out in G.S. 14-72 (b). The words “then and there being found” contained in the second count in this bill of indictment are insufficient to charge that the larceny in this case was a felony committed pursuant to a violation of G.S. 14-54. It is elementary that in an indictment containing several counts, each count should be complete within itself. State v. Jones, 275 N.C. 432, 168 S.E. 2d 380 (1969); State v. McKoy, 265 N.C. 380, 144 S.E. 2d 46 (1965).

Both counts in the bill of indictment were consolidated for judgment. The defendant was sentenced to a term of ten years in the state prison to be assigned to serve under the supervision of the State Department of Correction. A sentence of ten years is not in excess of that permitted by the statute upon a conviction of the felony of breaking and entering in violation of G.S. 14-54(a). The punishment upon conviction of the misdemeanor of larceny may not exceed two years. G.S. 14-72 (a) ; G.S. 14-3.

There was only one sentence imposed in this case on the felony and the misdemeanor. The fact that the sentence imposed is in excess of that permissible upon conviction of the misdemeanor is immaterial and is not prejudicial because the one sentence imposed is not in excess of that permitted by the statute upon conviction of the felony. State v. Morgan, 268 N.C. 214, 150 S.E. 2d 377 (1966); State v. Smith, 266 N.C. 747, 147 S.E. 2d 165 (1966); State v. Slade, 264 N.C. 70, 140 S.E. 2d 723 (1965).

We have considered all of. the defendant’s assignments of error and are of the opinion that the defendant has had a fair trial, free from prejudicial error.

No Error.

Parker and Hedrick, JJ., concur.