State v. Little , 27 N.C. App. 467 ( 1975 )

219 S.E.2d 494 (1975) 27 N.C. App. 467

STATE of North Carolina
v.
Joann LITTLE.

No. 752SC465.

Court of Appeals of North Carolina.

November 19, 1975. Certiorari Denied December 17, 1975.

Atty. Gen. Rufus L. Edmisten, by Deputy Atty. Gen. Andrew A. Vanore, Jr., Raleigh, for the State.

Paul, Keenan, Rowan & Galloway, by Jerry Paul, James E. Keenan, Karen B. Galloway, James V. Rowan, and James B. Gillespie, Jr., Durham, for the defendant.

Certiorari Denied by Supreme Court December 17, 1975.

BROCK, Chief Judge.

Defendant's first assignment of error alleges that the trial court committed error in allowing the State's witness Keys to answer the following question: "Based on the description you just gave me can you identify that rifle as being different from any other 30-30 Winchester rifle?" Over objection by defendant the witness was allowed to answer as follows: "Well, yes sir, I think I can. I think if anyone would bring another one, I feel like I could. One thing this rifle has only been used about three times and no oil has been put on it and if you look in the chamber also you can see it's got a dry shine and not an oily shine and I could identify it anyway."

When the foregoing exchange took place, the witness had just completed an identification of the 30-30 Winchester rifle which had been stolen from his home. He described a spot where the bluing of the metal had a light tint, and he described a scratch mark he had put in the metal with a nail for identification purposes. While we might agree that the question to which objection was made was beyond the scope of well-advised examination by the district attorney, we see no error prejudicial to defendant. The witness had already unequivocally identified the rifle as the one taken from his house. Clearly an innocuous question like the one to which error is assigned cannot constitute grounds for a new trial. The rifle was only one of two items identified as having been taken from Keys' residence and later removed from Jerome Little's trailer by Jerome. This assignment of error is overruled.

Defendant's second assignment of error reads as follows: "The Court erred in failing to properly instruct the jury to disregard evidence that was admitted over objection." The fallacy in this assignment of error lies in the assertion that the court must instruct the jury to disregard evidence merely because it is admitted over objection. Clearly a mere objection does not require exclusion of evidence. If the evidence be incompetent and is admitted over objection, the assignment of error should be to the admission of incompetent evidence, not to the failure of the court to instruct the jury to disregard it.

In any event, the argument under this second assignment of error is addressed to the failure of the court to instruct the jury to disregard evidence which was actually excluded by the trial court. Each of the exceptions grouped under this assignment of error (exceptions Nos. 2, 3, 4, 8, and 9) are taken to rulings favorable to defendant. In one instance the court sustained defendant's objection and did not permit the witness to answer; in two instances defendant's objection and motion to strike the testimony were allowed; and in two instances, upon defendant's objection, the court specifically instructed the jury to disregard the testimony as to the defendant Joann Little. Apparently, on trial, counsel was satisfied with the sufficiency of the rulings of the trial judge and made no request for further instruction. This assignment of error is overruled.

Defendant's third assignment of error is addressed to testimony about a coat that Joann Little customarily wore when the witness had occasion to see her. State's witness Rhodes testified that after talking with the witness Brooks, who had seen three people at the door of Rhodes' trailer residence on the day of the break-in, Rhodes went to see defendant Joann Little. He had known Joann Little for quite a while. The following questions and answers are the subjects of the exceptions grouped under this third assignment of error:

"Q. Have you ever seen Joann Little when she was wearing a coat?

"A. Yes.

"Q. Does Joann Little have any particular coat she customarily wears when you have seen her?

"A. Yes, it's a little white fur coat."

Obviously this testimony was prejudicial to Joann Little because the witness Brooks had described one of the persons she had observed at the door of the Rhodes' trailer residence on the day of the break-in as wearing a short black and white fur, fuzzy coat. Clearly the mere fact that the testimony is prejudicial to defendant does not make it incompetent. The witness Rhodes had known Joann Little for quite a while and had observed that she customarily wore the coat he described. In our opinion the evidence was competent and properly admitted. This assignment of error is overruled.

Defendant's fourth assignment of error is wholly without merit. No objection was made at trial to the admission of the evidence complained of, and defendant now seeks to insert an exception in the record on appeal. This assignment of error is overruled.

Defendant's fifth assignment of error is based upon defendant's exception No. 11. This exception appears in the record on appeal as follows:

"Mr. Grimes: At this time the State will call the defendant Jerome Little to the stand.

"Exception No. 11"

During the course of the trial, in the absence of the jury, the defendant Jerome Little tendered a plea of guilty to feloniously receiving stolen goods. The plea was accepted by the State. Thereafter the trial proceeded against both defendants as though no such plea had been entered by Jerome Little, and the issues of his guilt or innocence were submitted to the jury. Clearly this was done with the concurrence, if not the request, of Joann Little because no request was made of the trial judge that he advise the jury of the plea. Although Joann Little was given ample opportunity to cross-examine Jerome Little, there was no cross-examination of Jerome Little concerning the plea of guilty; and Joann Little does not now argue that the issues of Jerome Little's guilt or innocence should not have been submitted to the jury as though no plea had been entered. Obviously, at trial Joann Little concluded that it was to her advantage that the jury not be advised of Jerome Little's plea of guilty. Defendant's arguments upon this assignment of error are beside the point and are overruled.

By her sixth assignment of error, defendant argues that the trial judge erroneously restricted her cross-examination of a State's witness. Defendant cross-examined the State's witness Rhodes concerning an agreement proposed by Joann Little and her boyfriend, Julius Rogers, to pay Rhodes damages for the things taken from his residence. Defendant further cross-examined the witness concerning Jerome Little's refusal to sign such an agreement upon his assertion that he did not take anything from Rhodes' residence; that "all he was doing was just getting it out of his trailer." Defendant then asked Rhodes, "But, he was the one that had the stuff in his car?" Objection by the State was sustained, and the witness did not answer. Previously it had been made abundantly clear by the testimony of Jerome Little, by the witness Rhodes, and by a deputy sheriff that Jerome Little had many of the stolen items in his car. Therefore, the question propounded was argumentative to some extent and obviously repetitious of testimony which was not controverted. The trial judge has the duty to keep cross-examination within reasonable bounds, and we see no abuse of discretion or error prejudicial to defendant. This assignment of error is overruled.

Defendant's seventh assignment of error argues that the charges against Joann Little should have been dismissed for lack of evidence sufficient to submit to the jury. We do not agree. When viewed in the light most favorable to the State, the evidence tends to establish that the residences of Keys, Rhodes, and Johnson were broken into on 14 January 1974, and various items of personal property were stolen therefrom. It further tends to establish that Joann Little placed in Jerome Little's trailer on the day of the three break-ins items stolen from each of the three residences. Also it tends to establish that she had in her immediate possession on the day of the break-ins a blouse and some jewelry stolen from the Rhodes' residence. The State's evidence tends to establish that a female wearing a coat similar to Joann Little's coat was seen on the day of the break-ins standing at the door of the Rhodes' residence. Also there is the evidence tending to show that Joann Little attempted to induce Melinda Moore to take the blame for the break-ins and that Joann Little and her boyfriend, Julius Rogers, undertook to stop the prosecutions by agreeing to pay damages for those items which were damaged or not recovered. In our opinion this evidence is sufficient to invoke the well-established legal principle relating to possession of recently stolen property. If and when it is established that a building has been broken into and entered and that property has been stolen therefrom, the possession soon thereafter of such stolen property raises inferences of fact that the possessor is guilty of larceny and of the breaking and entering. State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965). The inferences of fact are strong or weak, depending upon the length of time that has elapsed and the greater or less possibility that other agencies have intervened. 2 Stansbury's N.C. Evidence, Brandis Revision, § 242. In our opinion the evidence was sufficient to require submission of the case to the jury and to support the verdicts. This assignment of error is overruled.

Defendant's eighth assignment of error argues that the trial court committed prejudicial error when it used the terms "he" and "his" instead of "she" and "her" in the following instruction:

"Now, members of the jury, the fact that the defendant has been indicted is no evidence of guilt. Under our system of justice when a defendant pleads not guilty he is not required to prove his innocence, he is presumed innocent. The State must prove to you the defendant's guilt beyond a reasonable doubt."

The instruction complained of was an instruction upon a general principle applicable to all defendants brought to trial in North Carolina. We think that defendant's argument that the jury was so naive as to understand that the presumption applied only to male defendants and not to female defendants requires no serious discussion. This assignment of error is overruled.

Defendant's ninth assignment of error argues that the following sentence of the instructions to the jury constitutes prejudicial error:

"Sixth, that the property was taken from a building after a taking or entering."

We strongly suspect that the error was on the part of the court reporter instead of the judge. In any event it seems highly unlikely that this lapsus linguae could have confused the jury.

Immediately preceding the sentence complained of, the judge used the term "breaking or entering" eight times in defining the offense. Immediately following the sentence complained of, the judge used the term "breaking or entering" four times. The following is the instruction given by the trial judge leading up to the sentence of which defendant complains:

"Now, I charge that for you to find the defendant guilty of felonious breaking and entering, the State must prove four things beyond a reasonable doubt.

"First, that there was either a breaking or an entering by the defendant. The opening of a closed door or the breaking in and opening of a window would be a breaking. Simply going through an open door or through a window would be an entry.

"Second, the State must prove that it was a building broken into or entered. And, a trailer would be a building.

"Third, that the owner did not consent to the breaking or entering; and,

"Fourth, that at the time of the breaking or entering the defendant intended to commit larceny therein. Larceny is the taking and carrying away of property of another without his consent with the intent to permanently deprive him of possession.

"Members of the jury, each of the defendants is charged with felonious larceny pursuant to a breaking or entering. Felonious larceny pursuant to a breaking or entering is the taking and carrying away of personal property of another without his consent, from a building, after a breaking or entering, intending at the time of taking to deprive the victim of its use permanently, the taker knowing that he was not entitled to take it.

"Now, I charge that for you to find the defendant guilty of felonious larceny, the State must prove six things beyond a reasonable doubt.

"First, that the defendant took property belonging to an owner and in this case it would be the three persons who are charged with having lost the property, either one, two or all three.

"Second, that the defendant carried away the property.

"Third, that the owner did not consent to the taking or carrying away of the property.

"Fourth, that at the time of the taking, the defendant intended to deprive him of its use permanently.

"Fifth, that the defendant knew that he was not entitled to take the property. And,

"Sixth, that the property was taken from a building after a taking or entering."

In our opinion the lapsus linguae in the sentence of which defendant complains, when viewed with the charge as a whole, was not likely to confuse the jury, and it does not justify a new trial. This assignment of error is overruled.

Defendant's tenth assignment of error has been disposed of in our discussion of her seventh assignment of error, and the same is overruled.

Defendant's eleventh assignment of error argues that the trial court should have submitted to the jury the lesser included offenses of misdemeanor breaking or entering and misdemeanor larceny. We have already stated the facts which the evidence tends to show and will not here repeat them. The State's evidence tends to show breaking or entering with intent to commit larceny, and larceny pursuant to breaking and entering. There is no evidence to the contrary. Defendant's evidence tends to refute her participation in a breaking or entering, or larceny pursuant to a breaking or entering. There is no evidence upon which to base a finding of guilt of a lesser included offense. The mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice to require submission of a lesser included offense. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

Defendant's twelfth assignment of error argues that the trial judge should have instructed the jury upon the legal principles applicable to accomplices. We find no evidence to justify or require such instructions. The entire theory of the trial and the evidence was that Joann Little was a principal in the first degree. This assignment of error is overruled.

By defendant's thirteenth assignment of error, she objects to the trial judge's settlement of the record on appeal. The defendant served a proposed record on appeal upon the district attorney in due time. The district attorney, in due time, served on defendant a proposed alternative record on appeal, and defendant timely requested a settlement of the record on appeal by the trial judge. Defendant's only objection to the State's proposed alternative record on appeal was the inclusion of testimony taken after the jury had returned its verdicts. The trial judge ordered that the State's proposed alternative record on appeal, including the post-verdict testimony, shall constitute the record on appeal. Defendant assigns as error the inclusion of the postverdict testimony in the record on appeal.

After the verdict was rendered and before judgment was entered, defendant, her mother, and others testified. Defendant took the witness stand and, under questioning by her attorney, admitted her participation in each breaking and entering and the larceny of the property. She explained how entry was gained, who participated, what property was taken, and that the stolen property was "dumped" in Jerome Little's trailer.

We agree with defendant's assertion that this post-verdict testimony has no effect on the issues presented by the appeal. The questions presented by defendant's assignments of error on appeal are resolved by application of the law. However, absent a showing of manifest abuse of discretion by the trial judge, the settlement of the record on appeal is not reviewable. Although the post-verdict testimony was of no use to this Court in passing upon defendant's assignments of error, since it was a proceeding before entry of judgment, we fail to see why defendant complains of its inclusion. This assignment of error is without merit and is overruled.

Defendant's fourteenth assignment of error argues that the judgment entered in each of the three cases is erroneous because each recites that the defendant was convicted of "receiving." This assignment of error is meritorious. The record on appeal clearly discloses that the jury returned a verdict in each of the three cases that defendant was guilty of felonious breaking or entering, and guilty of felonious larceny. The jury followed the trial court's instruction that if it found Joann Little guilty of breaking or entering, or guilty of larceny, it would not consider the charge of receiving. Although the judgments sentence defendant only upon the felonious breaking or entering charges and upon the felonious larceny charges, each of them does recite that she was also convicted of felonious receiving. These are obvious ministerial errors and constitute surplusage which right-fully should be deleted from the judgments and commitments.

Although we find no prejudicial error in the trial, we direct the Clerk of Superior Court, Beaufort County, to delete from the consolidated judgment and commitment entered in these three cases the words "and receiving" which appear three times in the second paragraph thereof, which begins with the words: "Having been adjudged by a jury of 12 guilty of ...."

No error.

VAUGHN and CLARK, JJ., concur.