State v. Hickman

23 N.C. App. 662 | N.C. Ct. App. | 1974

CAMPBELL, Judge.

The appellant contends that the trial court erred in the charge in summarizing certain portions of the evidence relating to how the defendant broke into the drug store and what he stole. The State’s evidence showed that the store was entered through the skylight and that some eight Timex watches and a camera were stolen. There was also evidence that no windows or doors had been entered. The defendant was later arrested with eight Timex watches in his possession and subsequently signed a confession admitting the crime. The confession was admitted in evidence after a proper voir dire examination and finding by the court.

On the basis of the above evidence, the trial judge charged the jury that “[t]he State offers evidence tending to show that . . . the defendant broke into Eckerd’s Drug Store . . .; that he went through a skylight . . . and took some eight or nine Timex watches and a camera; that he went out the same way and was seen shortly after the alarm was given. . . .” The charge is contextually in conformity with the evidence as presented. We find no error in this portion of the charge.

Next the defendant contends that the court expressed an opinion at various points during the trial in statements made by the court before the jury. We have examined the record pertaining to the alleged expressions of opinion and fail to find that the record supports the contention of the appellant. A typical instance complained of by the appellant shows the following on the cross-examination of the store manager:

“Q. Then when you were shown some watches how do you know they were the same watches?

A. For the simple reason just a few days prior to that— O.K. Timex watches are not the most plentiful quantity on the market. Periodically we get bulletins.

Q. What do you mean by that?

A. The Court: Let him finish. Tell him how you can identify those Timex watches.

A. Periodically we get bulletins out of Charlotte showing us what watches they have received at the warehouse. Just a few days prior to this I had written an A-l which is an order to Charlotte with these watches on that order.

The Court : What he wants to know is how you could look at those watches and tell them from any other Timex watches.

A. You mean from the same model of that watch to the same model of another watch ?

Q. Right.

A. There is no way.

Q. Then you don’t know of your own knowledge whether or not the watches that were shown to you are the same watches that were in your store.

A. The same watches; no, sir.

Q. Of your own knowledge these watches could have come from anywhere?

The Court: Objection sustained. He’s answered your question. Don’t argue.”

We fail to find that this is an expression of an opinion on behalf of the court that could in any way be considered prejudicial to the defendant. On the contrary it was an effort on the part of the court to expedite the trial and obtain a clear understanding of the evidence. This is a proper function of the trial judge.

In another instance, counsel for the defendant was questioning an officer about what had occurred when he went to the drug store to answer the alarm. The part complained of by the appellant follows:

“Q. You got a call the alarm had gone off when you shook the doors, did you not?

A. Yes, sir.

Q. It is possible, is it not —?

The Court: Let’s not get into possibilities, Mr. Wheatly.”

Again, this was an effort on the part of the court to expedite the trial and keep the trial within proper bounds. We hold that the record does not show that the trial court expressed any opinion on the merits of the case.

The appellant’s last assignment of error is that the trial court incorrectly charged the jury on the elements required to constitute the crime of larceny. Specifically, the appellant asserts that the court omitted the element “without the owner’s consent.” The trial court defined larceny as “the taking and stealing and carrying away the personal property of another with the intent on the part of the taker to convert it to his own use and permanently deprive the owner of its use.” This definition does not specifically refer to the owner’s consent, but considered contextually it is nevertheless a proper charge. By use of the word “stealing” the court put the question of the owner’s lack of consent to the jury. “Stealing” is taking another’s property without permission and is understood in common usage to be a taking without right, something that any juror would understand and appreciate. Therefore, in context, we find that the charge properly put the various elements of larceny before the jury for their consideration.

We find no prejudicial error in the trial below.

Judges Morris and Vaughn concur.