25 N.C. App. 277 | N.C. Ct. App. | 1975
Defendant first contends that the trial court erred in admitting evidence of transactions on 30 May 1974 involving James Mann, Officer Sanders and defendant. We disagree. Evidence of other offenses is admissible when, as in the case at bar, it tends to show guilty knowledge on the part of defendant or a plan “embracing the commission of a series of crimes. . . . ” State v. McClain, 240 N.C. 171, 175-76, 81 S.E. 2d 364, 367 (1954). See also 1 Stansbury, N. C. Evidence (Brandis rev.), §§ 91, 92. Furthermore, the trial court specifically instructed the jury as to the limited purpose for which this evidence was admitted.
Defendant next contends that the trial court should have granted his motion for judgment as of nonsuit on the ground that there was no evidence of an agreement to receive goods exceeding $200.00 in value. This contention also is without merit. It is well settled that a criminal conspiracy may be established by circumstantial evidence from which the conspiracy may be inferred. State v. Horton, 275 N.C. 651, 170 S.E. 2d 466,
Defendant’s remaining assignments of error concern the court’s instructions to the jury. Reading the charge as a whole, we find it adequate in all respects but one: defendant correctly contends that the court committed error in failing, after proper request, to explain the law of circumstantial evidence. Although there is no set formula by which the court is required to instruct on circumstantial evidence, when a proper request is tendered it must be given, at least in substance. See State v. Beach, 283 N.C. 261, 196 S.E. 2d 214 (1973) ; State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965) ; State v. Warren, 228 N.C. 22, 44 S.E. 2d 207 (1947) ; State v. Shoup, 226 N.C. 69, 36 S.E. 2d 697 (1946). Compare State v. Shook, 224 N.C. 728, 32 S.E. 2d 329 (1944), with State v. Hooker, 243 N.C. 429, 90 S.E. 2d 690 (1956). For failure of the trial court to give proper instructions to the jury, defendant is entitled to a new trial.
New trial.