State v. Carter , 17 N.C. App. 234 ( 1972 )

193 S.E.2d 281 (1972) 17 N.C. App. 234

STATE of North Carolina
v.
Hazel CARTER and Robert Lee Hart.

No. 7227SC813.

Court of Appeals of North Carolina.

December 29, 1972. Certiorari Denied March 6, 1973.

Atty. Gen. Robert Morgan, by Associate Atty. Gen. Walter E. Ricks, III, for the State.

Childers & Fowler, by Henry L. Fowler, Jr., Mount Holly, and William N. Puett, Gastonia, for defendant Hazel Carter.

Brown & Brown, by Joseph G. Brown, Belmont, for defendant Robert Lee Hart.

Certiorari Denied by Supreme Court March 6, 1973.

BROCK, Judge.

Each defendant assigns as error the denial of motion for nonsuit. "Possession of stolen property shortly after the property was stolen raises a presumption of the possessor's guilt of larceny of such property." 5 Strong, N.C. Index 2d, Larceny, § 5, p. 189. Where it is established that the larceny was by breaking or entering, the possession of the recently stolen property raises a presumption of the possessor's guilt of the breaking or entering as well as the larceny. State v. Waddell, 11 N.C.App. 577, 181 S.E.2d 737. In our opinion the motions for nonsuit were properly overruled.

Defendant Carter assigns as error the argument of the Solicitor concerning the contents of the box of cigars and cigarettes and his use of the box in the view of the jury. Defendant argues that the box of cigars and cigarettes had not been introduced in evidence and that the Court should have sustained her objection. Apparently the box of cigars and cigarettes defendant refers to in this assignment of error are the boxes, or one of the boxes, marked as State's exhibits 3, 4, 5, and 6. These exhibits were identified by the State's witness as the same brands and similar to the ones stolen from the Belmont Amoco station on 1 March 1971. It is not clear from the record whether these exhibits were formally introduced in evidence, but it is abundantly clear that they were the subject of testimony by the State's witness in the presence of the jury and were on display before the jury during the presentation of the State's evidence. Clearly, the exhibits had not been excluded from evidence or denied admission. We perceive no prejudicial error in the reference to them by the Solicitor in his argument to the jury. This assignment of error is overruled.

Both defendants assign as error various portions of the trial judge's instructions to the jury. Specifically, they complain that the jury was not permitted to find one defendant guilty and the other not guilty. They argue that the instructions require the jury to find both guilty if they find one guilty. Without attempting to dissect each phrase challenged by defendants, it is our opinion that the instructions adequately apprise the jury of its responsibility as to each defendant separately. This assignment of error is overruled.

We have examined defendants' remaining assignments of error to the trial court's instructions to the jury. In our opinion the defendants had a fair trial and their cases were submitted to the jury under appropriate instructions upon applicable principles of law.

No error.

CAMPBELL and GRAHAM, JJ., concur.