No. 8120SC265 | N.C. Ct. App. | Oct 6, 1981
Defendant brings forth six assignments of error on appeal.
I.
Defendant first argues that the court improperly prevented the defense attorney, during jury selection, from questioning prospective jurors using the words "not fully satisfied or entirely convinced" to describe reasonable doubt.. While North Carolina law permits attorneys to inquire diligently of prospective jurors in order to assess their fitness to serve, it is within the court's discretion to control the manner and extent of such inquiry. State v. Young, 287 N.C. 377" court="N.C." date_filed="1975-06-06" href="https://app.midpage.ai/document/state-v-young-1227971?utm_source=webapp" opinion_id="1227971">287 N.C. 377, 387, 214 S.E. 2d 763, 771 (1975); State v. McDougald, 38 N.C. App. 244" court="N.C. Ct. App." date_filed="1978-10-17" href="https://app.midpage.ai/document/state-v-mcdougald-1213049?utm_source=webapp" opinion_id="1213049">38 N.C. App. 244, 253, 248 S.E. 2d 72, 80 (1978). It is clear from the record that the trial court would have allowed the defense attorney to question prospective jurors using the words "reasonable doubt," but would not allow substitution of words chosen by defense counsel which the judge considered to constitute an attempt to "argue the law." Such a limitation did not prevent defense counsel from making sufficient inquiries to intelligently exercise his jury challenges and any error was therefore harmless.
II.
Defendant's second assignment of error concerns admissibility of the opinion of a witness that a voice she heard over the telephone was that of defendant. Defendant contends that the evidence suggests this opinion was based on the caller's identification of himself as defendant rather than recognition of the caller's voice by the witness. While it is true that representation by a caller that he is a certain person is insufficient to establish his identity, "[i]t is not always necessary to prove the identification before introducing evidence of a conversation . . ." so long as the caller's identity is shown by direct or circumstantial evidence "somewhere in the development of the case. . . ." State v. Richards, 294 N.C. 474" court="N.C." date_filed="1978-04-17" href="https://app.midpage.ai/document/state-v-richards-1228304?utm_source=webapp" opinion_id="1228304">294 N.C. 474, 480, 242 S.E. 2d 844, 849 (1978). In the case at bar, there was ample circumstantial evidence that the defendant was, in fact, the caller in question.
III.
Defendant next challenges the court's instruction to the jury that movement of a jewelry box a few feet from the top of a
As defendant concedes, movement of even a few inches is sufficient to satisfy the element of asportation to which the court’s instruction apparently alluded. State v. Carswell, 296 N.C. 101, 249 S.E. 2d 427 (1978). The only remaining element to be satisfied is that of intent at the time of asportation to permanently deprive the owner of possession. 8 Strong’s N.C. Index 3d, Larceny § 1 (1977). Such intent may be ascertained from surrounding circumstances and, absent clear insufficiency of the evidence, is properly a question for the jury.
We have examined defendant’s remaining assignments of error and find them to be without merit.
In the trial of the defendant we find
No error.