State v. Thacker , 5 N.C. App. 197 ( 1969 )

Beitt, J.

In his sole assignment of error, defendant contends that the trial judge did not properly “declare and explain the law arising on the evidence” and did not “state the evidence to the extent necessary to explain the application of the law thereto” as required by G.S. 1-180.

■ G.S. 14-89.1 under which defendant was indicted provides as follows: ' ■ '

“Any person who shall by the use of explosives, drills, or other tools unlawfully force open or attempt to force open or ‘pick’ the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary.”

Among other things, G.S. 1-180 provides that the trial judge “shall declare and explain the law arising on the evidence in the case.” As was said by Moore, J., in State v. Spratt, 265 N.C. 524, 144 S.E. 2d 569, “* * * the trial judge is not required to instruct the jury with any greater particularity upon any element of the offense than is necessary to enable the jury to apply the law with respect to such element to the evidence bearing thereon.”

A review of the instructions to the jury in this case discloses that they included a summarization of the charge as contained in the bill of indictment, a recapitulation of the evidence, an explanation of the effect of a not guilty plea and the presumption of innocence, a reading of the statute, and the following:

“Therefore, members of the jury, if the State of North Carolina has satisfied you from the evidence in this case and beyond a reasonable doubt that * * * the defendant by the use of tools did unlawfully force open the safe belonging to Carolina Nurseries, Incorporated, wherein money or valuables were being kept, if you find that to be the facts in this case from the evidence and beyond a reasonable doubt, it would be your duty to return a verdict of guilty as charged against this defendant. If you fail tó so find, it would be your duty to render a verdict of not guilty or if upon a fair and impartial consideration of all the facts and circumstances in the case, you have a reasonable doubt as to his guilt, it would be your duty to give him the benefit of this doubt and to acquit him.”

' Considering the instructions contextually, and particularly the portion above-quoted, together with the facts and circumstances in this case, we hold that the charge complied with G.S. 1-180 and the assignment of error' related thereto is overruled.

The defendant deceived a fair trial, free from'prejudicial error. Although a young man, the record reveals that he had been convicted of serious offenses in three different states and was an escaped prisoner from South Carolina at the time of the offense complained of here. The sentence imposed was within statutory limits.

No error.

Mallard, C.J., and Parker, J., concur.