State v. Braxton
| Decision Date | 20 April 1949 |
| Docket Number | No. 290.,290. |
| Court | North Carolina Supreme Court |
| Parties | STATE . v. BRAXTON. |
Appeal from Superior Court, Pitt County; Luther Hamilton, Special Judge.
Louis Bass Braxton was convicted of larceny and receiving and of highway robbery, and he appeals.
Error and remand as to prosecution for larceny and receiving, and new trial as to prosecution for highway robbery.
The defendant was tried upon an indictment, No. 3393, charging him with larceny and receiving. The jury returned a verdict of guilty as charged. Judgment was not pronounced, but the defendant was immediately put on trial upon an indictment, No. 3459, charging him with highway robbery. The jury likewise returned a verdict of guilty as charged.
Thereupon the Court ordered the two cases consolidated for the purpose of judgment, and pronounced judgment as follows: "That the defendant be confined in the State's prison for a term of not less than eight years nor more than ten years."
The defendant appeals, assigning error.
Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Asst. Atty. Gen, for the State.
LeRoy Scott, of Washington, and Albion Dunn, of Greenville, for defendant.
In the respective trials upon the above indictments, the defendant moved for judgment as of nonsuit at the close of the State's evidence and renewed his motion at the close of all the evidence. The motions were denied and the defendant duly excepted in each case and assigns error based thereon.
It is well settled in this jurisdiction that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State, and when so considered, on the record before us, we think the evidence is sufficient in each case, to sustain the rulings of the Court below. State v. Gordon, 225 N.C. 757, 36 S, E.2d 143; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Brown, 218 N.C. 415, 11 S.E.2d 321.
In this case the defendant excepts and assigns as error the following portion of his Honor's charge: "If the State in this case has satisfied you from the evidence beyond a reasonable doubt that the defendant Louis Braxton, on the 15th day of August, with the criminal purpose and intent at the time to deprive the prosecuting witness, Howard Hazleton, of his pocketbook and the contents thereof, having had no right to it at the time, and for the purpose of appropriating it to his own permanent use and enjoyment, took the said money of the said prosecuting witness, then you would return a verdict of guilty."
The defendant contends this instruction did not require the jury to find that the taking, if any, was with a felonious intent. We do not so construe it. But on the contrary, we think the instruction gave the essential elements of larceny which constitute a felonious intent. State v. Massengill, 228 N.C. 612, 46 S.E.2d 713; State v. Cameron, 223 N.C. 449, 27 S.E.2d 81; State v. Epps, 223 N.C. 741, 28 S.E.2d 219; State v. Holder, 188 N.C. 561, 125 S.E.2d 113; 52 C.J.S., Larceny, § 25, page 817 et seq. Moreover, the Court had defined larceny to be "the felonious or criminal taking and carrying away of the personal property of another by force and against the will of the owner and taking and carrying it away with the then present intent on the part of the one who takes it to appropriate it to his own use for all time and to deprive the rightful owner of its use, and when that taking is from the person of one then it becomes larceny from the person." No prejudicial error has been shown, and the exception will not be upheld.
We have examined the remaining assignments of error relating to the trial of this case, and they are without merit.
The defendant excepts and assigns as error the following excerpt from his Honor's charge: "And if the State has satisfied you from the evidence and beyond a reasonable doubt--and a reasonable doubt, gentlemen, is a doubt based upon reason and common sense and growing out of the evidence in the case-^then you will return a verdict of guilt in this case."
The vice complained of here is the instruction that a reasonable doubt "is a doubt based upon reason and common sense and growing out of the evidence in the case." As said in State v. Tyndall, N.C, 52 S.E.2d 272, 273, a reasonable doubt Stacy, C. J, said in the last cited case:
While some authorities hold that a reasonable doubt sufficient to justify the acquittal of a defendant must arise from the evidence and that an instruction to that effect includes want of eyidence, 23 C.J.S, Criminal Law, § 910 at page 164, we think such instruction is too limited and tends to prejudice the rights of the defendant.
A defendant is entitled to an acquittal if there is a reasonable doubt in the minds of the jurors as to his guilt, and it makes no difference whether that doubt arises out of the evidence in the case or...
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