State v. Frye , 229 N.C. 581 ( 1948 )

WixbORNE, J.

While on this appeal defendant assigns as error twenty-one exceptions as shown in the record, and states in his brief seven questions as involved on this appeal, he designates no specific exceptions in the argument advanced in his brief, but seems to devote attention, in the main, to the contention that he is entitled to judgment as of nonsuit.

Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him. Rule 28 of Rules of Practice in the Supreme Court, 221 N. C. 562, and numerous cases cited thereunder.

Nevertheless, we have adverted to all of the exceptions, and find in them no sufficient error to justify sending the case back for new trial. However, we deem it expedient to treat the question of nonsuit, so earnestly urged by counsel for defendant.

The court submitted the case to the jury on two counts, breaking and entering, and larceny,—instructing the jury that any one of three verdicts might be rendered, guilty of the charge of breaking and entering, etc., guilty of larceny, or not guilty. It is true the court first gave the instruction that one of two verdicts, guilty or not guilty, could be returned by the jury; but the jury was called back into the courtroom and properly given the instruction first above stated.

Now, then, are the facts and circumstances shown in the record of sufficient force and import to support a verdict of guilty of larceny, of which defendant was convicted ? We think so.

The State relies wholly upon circumstantial evidence to connect defendant with the crime committed. In passing upon the legal sufficiency of such evidence for a conviction of a felony, as in this case, “the rule is that the facts established or advanced on the hearing must be of such nature and so connected or related as to point unerringly to the defendant’s guilt and exclude any other reasonable hypothesis.” Stacy, C. J., in S. v. Harvey, 228 N. C. 62, 44 S. E. (2) 472; S. v. Coffey, 228 N. C. 119, 44 S. E. (2) 886.

However, unlike the factual situations and circumstances in the TIarvey and Coffey cases, the facts and circumstances detailed in the evidence offered by the State in the case in hand is of legal sufficiency for a conviction of the felony of larceny.

We have here evidence tending to show that the safe and its contents were taken in the nighttime and hauled away in a four-wheel motor vehicle. We also have evidence tending to show that the motor vehicle used in hauling the safe is the automobile, a Plymouth coupe, owned by defendant. And the evidence as to the shoes of defendant fitting the tracks of a man, apparently made in pushing the vehicle when stalled, and as to the sales slip which was found at the place where the vehicle was stalled, is sufficient for a finding beyond a reasonable doubt that defendant was present and was implicated in the larceny charged. Moreover, such finding would not be, and is not inconsistent with the evidence offered by defendant tending to show that others were seen operating defendant’s automobile at an early morning hour of the night the crime was committed.

No error.