16 N.C. App. 312 | N.C. Ct. App. | 1972
Defendant contends that the trial court erred in admitting into evidence State’s Exhibit No. 1, an itemized list of merchandise allegedly found outside the building and in denying defendant’s motion to strike all evidence concerning such items at the close of all the evidence.
In order to convict the defendant under G.S. 14-54 (a) for felonious breaking or entering, it is incumbent upon the State to prove beyond a reasonable doubt that the defendant did break into or wrongfully enter the building “with intent to commit any felony or larceny therein.” Also, “[a]s a general rule, evidence, to be admissible, must have some bearing on the issues involved. It must tend to prove or disprove some fact material to the cause of action alleged, or to the defense interposed.” Corum v. Comer, 256 N.C. 252, 254, 123 S.E. 2d 473 (1962). Clearly the disputed evidence is relevant on the issue of whether the defendant possessed the requisite intent to steal, and the State has presented ample testimony connecting such evidence in time and place with the defendant who was apprehended inside the grocery.
Defendant next contends that the trial court erred in denying his motions to dismiss the charges of larceny and felonious breaking or entering. As to his motion directed to the charge of felonious breaking or entering, defendant argues that the State offered no evidence to prove the specific and limited intent to steal as required by statute to sustain a conviction. As to his motion directed to the larceny count, defendant contends its denial was prejudicial even though the jury found him “not guilty” since the submission of that offense to the jury without facts to support it inadvertently invited their minds to surmise and conjecture on the issue of intent to steal in the breaking or entering count. We find these exceptions also without merit.
Defendant also assigns as error the trial court’s instructing the jury as if both defendants were charged in the same bill of indictment and in developing a conspiracy theory in his instruction which had not been alleged or proven by the State. If there was any error, it was cured by the trial court’s instructions as to the elements of each of the crimes charged as they apply to each of the defendants.
Defendant further assigns as error the following statement made by the trial judge in his charge to the jury:
“The defendants, as they have a right to do elected not to offer evidence, relying on the weakness or what they consider to be the weakness of the State’s evidence.”
Defendant argues that it is prejudicial error to point out the failure of a defendant to testify even if done in the qualified manner above. G.S. 8-54, in relevant part, reads as follows:
*316 “In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such a request shall not create any presumption against him.”
Also, in Griffin v. California, 380 U.S. 609, 14 L.Ed. 2d 106, 85 S.Ct. 1229 (1965), a state constitutional provision allowing a court to comment on defendant’s failure to testify was held unconstitutional.
In State v. Paige, 272 N.C. 417, 158 S.E. 2d 522 (1968), an instruction similar to the one in the case at hand was upheld. The Court, speaking through Parker, C.J., stated:
“Reading the challenged instruction in the instant case in its entirety, it seems manifest that the jury must have clearly understood that defendant had a legal right to elect to testify or not to testify in his own behalf, and that he had a right to rely upon the weakness of the State’s case. The trial judge in his conclusion of the challenged instruction made an infelicitous choice of words, but we think considering the instruction as a whole the jury could not have gotten the impression, as he contends, that the trial judge instructed the jury that the failure of defendant to testify in his own behalf was a fact to be considered against him.” Paige, at p. 423.
While the trial judge in this case might have made an “infelicitous choice of words,” nevertheless, considering the charge as a whole, he did not give the jury the impression that defendant’s failure to present evidence was to be taken against him. This is borne out by the jury’s failure to find him guilty of larceny. What is constitutionally condemned are “instructions by the court that such silence is evidence of guilt.” Griffin, supra, at p. 615. The instruction complained of here cannot be so interpreted. While we do not approve of the challenged instruction as a model of clarity, we do not perceive in it prejudicial error sufficient to justify a new trial.
No error.
