Defendant was convicted of grand larceny of a 12-inch portable color television set. He appeals arguing twо points in his Appellant's Brief.
After the state rested, defense counsel advised the court he had a motion to make. The jury wаs excused, the motion heard and denied; thereupon counsel stated: "That's all we have * * * I would like to inform the Court at this time thаt the defense will not offer any evidence and we will rest at this point." Upon return of the jury the court stated: "The defendant is prеsent and you may proceed." Defense counsel announced: "Your Hon- or, the defense presents no testimony and it rests." *
The trial judge then -said: "Very well. Members of the jury, the State having previously rested and the defense now having rested *525 its case without putting in evidence, this completes the testimony in this case. It will be necessary for the Court to prepare the Instructions."
Defendant contends the defendant's personal privilege to stand on the legal presumption of innocence was invaded and the jury prejudiced by the court's remark, citing State v. Jones,
The opinion in State v. Landers,
It is also urged on defendant's motion for a dirеcted verdict of acquittal that a prima facie case of grand larceny was not established — this based on the clаim that the set was taken with the consent of the owner. The evidence showed defendant entered the Brick Skelgas store during а noon hour when the owner and three employees were absent and only one employee, a bookkeeрer, was on duty. Defendant asked the employee to fill propane bottles in his camper. The employee went to the camper, got two bottles, took them to an outside pump and filled them, leaving defendant in the office. The building has two dоorways, the main one on the east. From a south side counter a passage led to a back door and an orrtside garbage container. Among the small T.V. sets on the counter was a Sony valued at over $300. When the bookkeeper returned with thе filled bottles, *526 collected the price and replaced the bottles in the camper, the defendant left. Shortly therеafter it was discovered the Sony T.V. set was missing. A check made of employees disclosed it had not been sold. The warranty cards were also missing. An employee searched the garbage can and found the set there covered with cardboаrd. It was brought back to the counter, and after a police investigation returned to the garbage can and recovеred with cardboard. That evening at 7:30, after the store closed, an officer, who had taken up a watch from an inconsрicuous place, noticed a car approach. It was driven by defendant who went to the can, removed the cardboard covering, took the set and put it in the back seat of his car, the door to which he had left open. While doing so the officer accosted defendant.
Defendant argues the T.V. set was taken from the trash can with the consent of the owner, and so there was no larceny. The crime of larceny was complete when defendant removed the T.V. set from thе display counter and concealed it outside the building beneath the cardboard covering. That was sufficient asportation. State v. Crowe,
Defendant's claim of consent is akin to the defense of entrapment, which presupposes the commission of a crime. It was not presented to the trial court. When officers merely furnish an opportunity for a dishonest person to take property and lie in wait in anticipation of his appearing and taking the property, there is no entrapment to commit larceny. Stаte v. Snow,
Defendant's Reply Brief argues a question not mentioned in Appellant's Brief — that shoplifting is an included offense of
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grand larceny. This is not in accord with our rules as it affords no opportunity to the state to answer the contention. In any event, in his citеd Manson v. State,
The judgment is affirmed.
Notes
In the argument to the jury defendant’s attorney reminded the jurors of the decision that defendant would not testify in the following words: "Now, as I explained in the initial questioning of you jurors in the voir dire examination, I told you that the dеfendant would not testify in these proceedings and he did not. Now, that was my decision. I told him to not testify and for the reasons which I will give you. Now if you feel that was a mistake then that, too, was my mistake, and I should bear the brunt of it. The ■defendant, Jerry, should not.” He then stated his reasons for that decision.