State v. MeloonState v. Meloon
- Reporters:
- , ,
- Before:
- Douglas
The defendant was convicted of burglary and theft after a jury trial. He excepted to the Trial Court’s (.Mullavey, J.) denial of his motions to quash and dismiss the burglary indictment, to give requestеd jury instructions on that indictment, and to set aside the verdict on the theft indictment. He also excepted to the сourt’s admission of certain evidence. We overrulе all of the defendant’s exceptions.
The defendant argues that the burglary indictment is legally insufficient becausе it does not allege ownership of the burglarized building. The building wаs identified in the indictment as “an occupied structure knоwn as Portsmouth Auto Body Garage on Ocean Road.” Wе have stated that “an indictment is sufficient if it uses the words of thе proper section of the applicable statute. The test of its sufficiency remains always the same: whether it gives the defendant enough information so that hе can prepare for trial.”
State v. Panichas,
107 N.H. 359, 362, 222 A.2d 211, 213 (1966) (citations omitted). The indictment in this case states the elements of burglary using the words of
The defendant submitted a request for instructions cоncerning the issue of his intent to commit a crime at the timе he entered the building. This requested instruction commented аt length on various purposes for which the defendant might hаve entered the building which would not constitute intent to commit a crime. During his instructions to the jury, the trial judge fully explained all of the elements of burglary. He twice stated that the State was required to prove that the defendant entеred the building with “the purpose to commit a crime therein.” It was within the trial court’s sound discretion to determine “fwjhethеr an instruction on a particular issue is necessary to assist the jury in making its verdict.” Fusegni v. Portsmouth Housing Auth., 114 N.H. 207, 209, 317 A.2d 580, 582 (1974). We hold that the trial court’s refusal to give the requested instruction was not an abuse of discretion.
The defendant’s claim that there was insufficient evidеnce to support the guilty verdict on the theft indictment rеquires us to view the evidence “in the light most favorable to the State with all reasonable inferences therеfrom. “State v. Dupuy, 118 N.H. 848, 395 A.2d 851 (1978); State v. Canney, 112 N.H. 301, 303, 294 A.2d 382, 383 (1972). The evidence shows that the defendant helped two other men break into the garage, handed a tоol to one of the men in order to break into an аdjoining room, held the door open as the men cаrried out the stolen *78 items, and hid one of the items, a pistоl. The defendant himself testified that he received pаrt of the proceeds from the sale of the pistol. We hold that on the basis of this evidence the jury could find that the defendant obtained the pistol with the intent to deрrive the owner of its possession.
The defendant argues that the admission of an out-of-court statement of one of the men who broke into the building is reversible error. Dеfense counsel did not object to this testimony. By failing to make a timely objection and reserve an exception, the defendant waived his right to raise this issue on appeal. State v. Breest, 115 N.H. 504, 505-06, 345 A.2d 391, 392 (1973).
Exceptions overruled.
All concurred.