State v. Carelock , 293 N.C. 577 ( 1977 )

HUSKINS, Justice.

We overrule defendant’s first assignment of error based on denial of his motion to dismiss the charge of first degree burglary because no “breaking” had been shown. Opening a closed but unlocked door is a sufficient breaking. State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976); State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967); State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967). Mrs. Lovelace testified that all outside doors were closed. In his incriminating statement offered in evidence by the State, defendant said the back door was open. The conflict in the State’s evidence presented a question for the jury.

Likewise, defendant’s second assignment is overruled. The language of the trial court, characterizing defendant’s statement to SBI Agent Richardson as a “confession,” was not an expression of opinion in violation of G.S. 1-180. State v. Bailey, 280 N.C. 264, 185 S.E. 2d 683 (1972).

The court’s charge delineating the elements of first degree burglary, while not technically correct in every isolated portion, when construed contextually as a whole and in the same connected way in which it was given, is free from prejudicial error. The isolated slip of the tongue when the court said “breaking or entering” instead of “breaking and entering” was harmless. State v. Gatling, 275 N.C. 625, 170 S.E. 2d 593 (1969). The jury was not misled. Defendant’s third assignment is overruled.

Defendant’s fourth assignment is based on the following excerpt from the charge:

“The defendant by his silence denies each and every allegation of these charged [sic] against him and every element of the crimes charged against him. That is what some by his silence tends to show and what it does show, if anything, is also for you to say and determine.”

Defendant argues that the quoted portion of the charge permits the jury to roam at large in its consideration of defendant’s failure to testify and interpret such failure either favorably or unfavorably, for or against him, as the jury may determine. This argument is sound.

Examination of the entire charge reveals that the court had previously instructed the jury as follows:

“The defendant in this case has not testified. The law of North Carolina gives him this privilege. This same law also assures him his decision not to testify creates no presumption against him. Therefore, his silence is not to influence your decision in any way.”

Our decisions uniformly establish that where, as here, the court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part. State v. Cousins, 289 N.C. 540, 223 S.E. 2d 338 (1976); State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577 (1971); State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971). “A new trial must also result when ambiguity in the charge affords an opportunity for the jury to act upon a permissible but incorrect interpretation.” State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969). The jury cannot be expected to know which of two conflicting instructions is correct. State v. Holloway, 262 N.C. 753, 138 S.E. 2d 629 (1964).

For the error noted in the charge there must be a new trial and it is so ordered. It is appropriate to note, in passing, that absent a special request the judge is not required to instruct the jury that a defendant’s failure to testify creates no presumption against him. State v. Rankin, 282 N.C. 572, 193 S.E. 2d 740 (1973). “Ordinarily, it would seem better to give no instruction concerning a defendant’s failure to testify unless such an instruction is requested by defendant.” State v. Barbour, supra. Absent a request such an instruction is said by some jurisdictions to accentuate the significance of a defendant’s silence and thus impinge upon his unfettered right to testify or not at his option. See An-not., 18 A.L.R. 3d 1335, and cases cited. Accord State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974); State v. Bryant, 283 N.C. 227, 195 S.E. 2d 509 (1973).

The remaining assignments are not discussed since the matters giving rise to them are unlikely to recur at the next trial.

New trial.