State v. Ray

12 N.C. App. 646 | N.C. Ct. App. | 1971

GRAHAM, Judge.

Defendant assigns as error the denial of his motion for judgment of nonsuit made at the close of the State’s evidence and renewed at the close of all of the evidence. This assignment of error is overruled.

Defendant contends that while the evidence was sufficient to show a breaking or entering, it failed to establish that defendant entered the apartment with the intent to commit larceny therein as charged in the bill of indictment. When an indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged, and that the defendant intended to commit that offense in the house broken and entered. 2 Strong, N.C. Index 2d, Burglary and Unlawful Breakings, § 1, p. 46. However, intent is seldom subject to being proved by direct evidence. “It must ordinarily be left to the jury to determine, from all the facts and circumstances, whether or not the ulterior criminal intent existed at the time of the breaking and entry.” State v. Allen, 186 N.C. 302, 307, 119 S.E. 504, 506. The evidence here tended to show that at 3:00 a.m. defendant forced open a kitchen window and entered an apartment where he had no right to be. He walked around in the apartment for at least five to ten minutes shining his flashlight and opened a desk drawer in the dining room. This constitutes plenary evidence from which the jury could find that defendant entered the apartment with the intent to commit larceny.

The court instructed the jury: “[T]he defendant, Johnny Ray, is charged in the bill of indictment with first degree burglary. . . . Included in this charge is the lesser charge of felonious breaking and entering. . . . The State has elected to place the defendant on trial for felonious breaking and entering and not upon the count of burglary in the first degree, so you will not consider that. You will consider whether or not the defendant be guilty of felonious breaking and entering, whether he be guilty of nonfelonious breaking and entering, or not guilty of either offense.”

The defendant contends that the above instructions constituted prejudicial error in that the court was in effect telling the jury that defendant had already been extended mercy by the State and the court and was deserving of no more. This argument is without merit. Defendant was being tried under a bill of indictment charging first degree burglary. The solicitor’s election to try defendant on a lesser included offense amounted to a verdict of not guilty upon the specific offense charged in the bill of indictment and it was therefore important that the court instruct the jury that they consider only the lesser included offenses. See State v. Allen, 279 N.C. 115, 181 S.E. 2d 458; and State v. Britt, 270 N.C. 416, 154 S.E. 2d 519.

Through his final assignment of error defendant contends the court erred in activating a previously imposed sentence for larceny of an automobile. The judgment in that case imposed a sentence of nine to ten years which was suspended for five years. Defendant contends that this sentence was contrary to the provision of G.S. 15-200 wherein it is stated “the period of probation or suspension of sentence shall not exceed a period of five years. ...” Defendant interprets this provision as limiting the length of a suspended sentence to five years. The provision obviously has nothing to do with the length of a sentence that may be suspended but limits the period of time for which it may be suspended. Here the sentence was suspended for a period not in excess of five years and therefore was not contrary to the provisions of G.S. 15-200.

We have reviewed all assignments of error brought forward and conclude that defendant had a fair trial free from prejudicial error.

No error.

Judges Brock and Vaughn concur.