State v. McWhorter , 34 N.C. App. 462 ( 1977 )

HEDRICK, Judge.

Defendant first assigns as error the denial of his motion to quash the bill of indictment charging him with the felony of burning “a certain unhabited [sic] storage house, to wit: a storage building, . . . .” Defendant argues that the language of the bill is not sufficient to charge an offense under G.S. 14-62. We need not respond to this contention since the bill is clearly sufficient to charge an offense under G.S. 14-67.1, and the trial court correctly denied the defendant’s motion to quash.

Defendant has abandoned assignments of error numbers two and three by his failure to bring forward and argue these assignments in his brief. N.C. App. R. 28(b)(3).

By his fourth assignment of error defendant contends that the court erred “by failing to suppress State’s Exhibit #1 (a .38 caliber pistol) . . . .” This assignment of error has no merit simply because State’s Exhibit #1 was not admitted into evidence. Assuming arguendo, however, that the trial judge’s statement to counsel for defendant that “[i]t will not be necessary for you to object further to introduction of pistol . . . ,” and the State’s exhibiting the gun to the jury amounted to an admission of the gun into evidence, we find no prejudicial error. Before the trial judge ruled that Exhibit #1 could be admitted into evidence, and before the gun was exhibited to the jury, the trial court conducted a voir dire as to the circumstances surrounding the seizure of the weapon and made detailed findings of fact with respect thereto and made the following conclusion:

“[T]hat at the time of the removal of the pistol from the defendant’s pocket Barnette and Redmond had reasonable grounds to believe defendant was carrying a concealed weapon; that the removal was necessary to their own protection; that their removal of the pistol was legal and not the fruit of illegal search; upon the foregoing findings of fact and conclusions of law, the court rules that the objection to the introduction of the pistol should be overruled.”

The trial judge’s findings and conclusions are supported by the evidence in the record.

Defendant’s fifth assignment of error reads as follows:

“The failure of the trial judge to suppress the defendant’s statement marked State’s Exhibit #4 as the fruit of an unlawful search and seizure and as a result of lack of volun-tariness.”

Before the defendant’s extrajudicial statements were allowed into evidence, the court conducted a voir dire into the circumstances surrounding said statements and made findings of fact and drew the following conclusions:

“[0]ne — that the defendant freely, understandingly, and knowingly waived his rights to counsel and his rights against self-incrimination; two — the defendant’s statement to the detectives was voluntarily made without coercion or promises or threats; . . . .”

The findings and conclusions made after voir dire are amply supported by evidence in the record. This assignment of error has no merit.

Defendant’s sixth assignment of error is not supported by an exception in the record, and presents no question for review.

Defendant’s seventh assignment of error is abandoned. N.C. App. R. 28(b)(3).

Defendant assigns as error (number nine) the trial judge’s denial of his motion for judgment as of nonsuit. He argues that the State offered no evidence as to the defendant’s intent to kill in Case No. 76CR7410. Evidence as to the character and nature of the assault perpetrated upon Mr. Brady by the defendant is sufficient to take the case to the jury on the charge of secret assault, G.S. 14-31, and to support the verdict.

Defendant’s tenth assignment of error has no merit. The evidence in the record is sufficient to require submission of the case to the jury and to support the verdict on the charge of a violation of G.S. 14-67.1.

The defendant assigns as error the trial court’s failure to submit to the jury the lesser included offense of assault with a deadly weapon in the case wherein the defendant was charged with secret assault. It is well-established in this State that the trial court is not required to submit a lesser included offense to the jury when there is positive evidence of each element of the offense charged and no conflicting evidence relating to any of the elements. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972); State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972). The “[m]ere contention that the jury might accept the State’s evidence in part and might reject it in part will not suffice.” State v. Hicks, 241 N.C. 156, 160, 84 S.E. 2d 545, 547 (1954). In the present case there was positive evidence that the defendant committed every element of the offense charged in the bill of indictment, and there was no conflicting evidence as to any element of the offense. The defendant’s contention that the jury might have convicted the defendant of the lesser included offense of assault with a deadly weapon if they had been given the opportunity does not support the submission of the lesser included offense to the jury. This assignment of error has no merit.

We have carefully considered all of the defendant’s assignments of error in both charges and find that the defendant had a fair trial in both cases free from prejudicial error. However, we note that in Case No. 76CR7411 wherein the defendant was charged, tried and convicted of violating G.S. 14-67.1, the trial judge recited that the defendant had been found guilty of a violation of G.S. 14-62. Although the prison sentence imposed (10 years) in that case is within the limits prescribed for a violation of G.S. 14-67.1, the judgment must be vacated and the cause remanded to the Superior Court for the entry of proper judgment consistent with the conviction for a violation of G.S. 14-67.1.

The result is: in Case No. 76CR7410 wherein the defendant was charged with secret assault, we find no error; in Case No. 76CR7411 wherein the defendant was charged with a violation of G.S. 14-67.1, we find no error in the trial, but the judgment is vacated and the cause is remanded to the Superior Court of Iredell County for resentencing pursuant to a charge and conviction under G.S. 14-67.1.

No error in trial.

Remanded for judgment in Case No. 76CR7411.

Judges Britt and MARTIN concur.