25 N.C. App. 45 | N.C. Ct. App. | 1975
Defendants assign as error the failure of the court to allow their motions for nonsuit. We find no merit in this assignment and hold that the evidence was sufficient to survive the motions.
By assignments of error 5 and 6, defendants contend the court erred in its instructions to the jury with respect to the elements of the offense set forth in the warrants. Defendants contend that in addition to charging the jury that the State must prove beyond a reasonable doubt (1) that Mrs. Cable was in possession of the property at the time in question, (2) that defendants entered upon the property intentionally and willfully, and (3) that defendants entered the property after having been forbidden to do so, that the court should have charged a fourth element, that defendants entered the property “without a license therefor”. We find no merit in this contention.
In State v. Durham, 121 N.C. 546, 550, 28 S.E. 22 (1897), the court said: “Upon an indictment for entry upon land after being forbidden (Code, sec. 1120) [now G.S. 14-134], when the entry, after being forbidden by the party in possession, is shown or admitted, the burden devolves upon the defendant to show that he entered under a bona fide claim of right. ...” This ruling has been followed in many cases including State v. Wells, 142 N.C. 590, 55 S.E. 210 (1906), and State v. Cooke, 248 N.C. 485, 103 S.E. 2d 846 (1958). The assignments of error are overruled.
Defendants cite no authority, and we have found none, for their contention that a court reporter must be present when a verdict is returned by a jury. It is well settled in this jurisdiction that the record on appeal as certified imports verity and the trial judge is the final arbiter as to what occurred during the trial proceedings. 3 Strong, N. C. Index 2d, Criminal Law, § 158.
With respect to defendant Edgerton, the “Judgment and Commitment” signed by the trial judge recites that defendant appeared for trial upon the charge of trespass, entered a plea of not guilty, and was found guilty of the offense as charged, which is a violation of G.S. 14-134 and of the grade of misdemeanor. We find nothing unclear or ambiguous in this statement by the trial judge as to the jury’s verdict.
With respect to defendant Elliott, the “Judgment and Commitment” signed by the trial judge contains the following:
In open court, the defendant appeared for trial upon the charge or charges of trespass in 74CR606 and assault by pointing a gun in 74CR605, and thereupon entered a plea of not guilty,
Having been found guilty of the offense of trespass, and not guilty as to the offense of assault by pointing a gun, which is a violation of G.S. 14-135 and of the grade of misdemeanor....
Concededly, the reference to G.S. 14-135 is erroneous. However, inasmuch as the warrant clearly charged a violation of G.S. 14-134, the court gave clear instructions on the provisions of that statute, and as to the charge of trespass, the court instructed the jury to return a verdict of guilty as charged or not guilty, we perceive no error prejudicial to defendant Elliott.
We hasten to add that in criminal cases particularly, the superior courts would be well advised to have all trial proceedings recorded to the end that questions with respect to the proceedings might be minimized.
No error.
