37 N.C. App. 709 | N.C. Ct. App. | 1978
I.
The defendant’s first argument, that the trial court erred in denying defendant’s motion that a new lawyer be appointed to defend him, is without merit. In State v. McNeil, 263 N.C. 260, 139 S.E. 2d 667 (1965), the Supreme Court stated that in the absence of any substantial reason for replacement of court-appointed counsel, an indigent defendant must accept counsel appointed by the court, unless he wishes to present his own defense. In the present case, the following exchange took place in the presence of the jury:
“Mr. NEAVES: Your Honor, my client said that he would like to make a motion.
“COURT: Well, you represent him, what is that?
“Mr. NEAVES: It is new to me, Your Honor, I don’t know what it is. (After Consultation) Your Honor, he wants to make a motion to have a new lawyer appointed.
“COURT: Motion is denied.
“MR. NEAVES: Exception.”
No reason was given for defendant’s request for a new attorney. While the trial court might have investigated the situation more thoroughly by conducting a voir dire hearing, we can find, and defendant shows us, no prejudicial error in the trial court’s ruling on defendant’s motion. See also State v. Sweezy, 291 N.C. 366, 230 S.E. 2d 524 (1976).
II.
A second argument brought forward by defendant is that the trial court erred in denying defendant’s motion, made at the close of the State’s evidence, for judgment as of nonsuit on all charges. In his brief, defendant limits his argument to the charge of forging and uttering Exhibit 1. After reviewing the evidence presented by the State in the light most favorable to the State, as must be done on a motion for nonsuit, State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976), we conclude that defendant’s argument must be rejected. While the charge of forging and uttering
We must, however, reject the State’s argument that where a motion to nonsuit is not limited to a particular count but is addressed to all counts, the motion cannot be allowed where there is sufficient evidence to support any count. The State cites State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281 (1960), in support of its argument. G.S. 15A-1227 which covers motions to dismiss for insufficiency of evidence must be read to allow this Court to consider the sufficiency of all the evidence without regard to whether a motion to dismiss has been made at trial. G.S. 15A-1227(d). We believe that a motion to dismiss, if improperly phrased, will not destroy reviewability on appeal.
III.
A third argument made by defendant is that the trial judge erred in his instructions to the jury when he stated the following:
“Now members of the jury, the defendant is charged in each of these bills of indictment on the two forgeries and uttering cases he is charged also with uttering. Now uttering is fraudulently offering to another some instrument, it could be a check which has been falsely made but appears to be genuine. It is passing or getting cash or attempting to get cashed a falsely made instrument that is called uttering. So the Court charges you for you to find the defendant guilty of uttering a forged instrument or a forged check in this instance the State must prove five things beyond a reasonable doubt. First, that the check was falsely made and second, that it appeared to be genuine and third, that the defendant passed or attempted to pass the check in one instance to the bank [and in the other instance to some store I believe,]
Appellant’s Exception No. 9
and fourth, that the defendant knew that the instrument was falsely made and fifth, that the defendant intended to defraud.”
Defendant contends that the trial judge’s “and in the other instance to some store I believe” amounted to the expression of an opinion in violation of G.S. 1-180. We do not agree. In State v.
“Not every ill-advised expression by the trial judge is of such harmful effect as to require a reversal. The objectionable language must be viewed in light of all the facts and circumstances, ‘and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.’ State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950); State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281 (1960).” Id. at 430, 185 S.E. 2d at 892.
In view of the total charge to the jury we do not believe that this minor infraction amounted to error prejudicial to defendant.
IV.
The final argument we consider on this appeal is that the trial court erred in failing to arrest judgment as to the larceny charge to which the jury never returned a verdict. We agree with defendant’s contention. Our courts have held that a verdict which refers to only one charge amounts to an acquittal on any other charges being tried at the same time. See, e.g. State v. Teachey, 26 N.C. App. 338, 215 S.E. 2d 805 (1975). See also 4 Strong’s N.C. Index 3d, Criminal Law § 124.4 and cases cited therein. Since the trial judge obviously thought that guilty verdicts had been returned as to both the breaking and entering charge and the larceny charge and since he sentenced defendant on both charges, this case must be remanded for re-sentencing. State v. Hardison, 257 N.C. 661, 127 S.E. 2d 244 (1962).
Remanded for entry of judgment of acquittal in the larceny charge and re-sentencing for the crime of breaking and entering.
Remanded.
