State v. Pittman

• Decision Date: 24 May 1972
• Docket Number: No. 7218SC204,7218SC204
• Citation: 14 N.C.App. 588,188 S.E.2d 694
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Lewis Clark PITTMAN.

Page 694

188 S.E.2d 694

14 N.C.App. 588

STATE of North Carolina v. Lewis Clark PITTMAN.

No. 7218SC204.

Court of Appeals of North Carolina.

May 24, 1972.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. William F. O'Connell, for the State.

Eighteenth Dist. Asst. Public Defender J. Dale Shepherd for defendant. BROCK, Judge.

Defendant assigns as error that the trial judge instructed the jury that it should return a verdict of guilty on the first count in the bill of indictment if it was satisfied beyond a reasonable doubt that defendant broke or entered the premises. It is defendant's argument that this instruction is error because the bill of indictment charges that defendant broke and entered, and therefore the State has the burden of proving both breaking and entering.

It seems that the public defender is seeking to resurrect an argument which was laid to rest in State v. Jones, 272 N.C. 108, 157 S.E.2d 610. This assignment of error is without merit and is overruled.

Defendant next assigns as error that the trial court denied his motions for nonsuit. The sufficiency of the State's evidence has twice been ruled upon. State v. Pittman, Supra, and State v. Pittman, Supra. We again hold that the State's evidence was sufficient to require submission of the case to the jury. This assignment of error is without merit and is overruled.

Defendant assigns as error that in its instructions to the jury the trial court assumed a fact not in evidence. In recapitulating the testimony of the manager of the Western Auto Supply Company store, the trial judge, Inter alia, stated: '. . . he observed the receiving door at the rear of the premises and the hacksaw that had been used to saw a lock on it in two; and that the bar securing the door had been removed. . . .' Defendant argues that the store manager did not testify that the hacksaw had been used to saw the lock. In the manager's testimony we find the following: 'The lock had been sawed in two with a hacksaw, I assume, anyway the hacksaw was lying there nearby.' It is true that the trial judge failed to recapitulate that it was assumed that the hacksaw had been used to saw the lock, but this is immaterial. The important fact was that the lock had been sawed in two with something.

If the charge as a whole summarizes the evidence fairly and presents the law fairly to the jury, an isolated, insubstantial, technical variation which could not have affected the result will not be held prejudicial. State v....