State v. Wilson , 1969 N.C. App. LEXIS 1244 ( 1969 )

Vaughn, J.

Motion to nonsuit is properly denied if there is any competent evidence to support the allegations of the indictment, considering the evidence in the light most favorable to the State, and giving it the benefit of every reasonable inference fairly deducible therefrom. 2 Strong, N.C. Index 2d, Criminal Law, § 106.

Evidence for the State tends to show the following. On 29 April 1969, Mrs. Esteven Taylor lived in an apartment. There were four other apartments in the building including one across the hall which was shared by Patricia Martin and Sarah Wallace. Mrs. Taylor left her apartment about 6:50 a.m. and upon returning from her day’s work at 3:45 p.m. found that the lock to her front door had been removed. Her television set and a record player were missing. Sarah Wallace testified that she saw Thomas Wilson and Patricia Martin enter the Taylor apartment after Wilson took a hammer from his pocket and pulled the nails from the hinge. She watched Wilson put the television set in a taxi and drive off with Patricia and Joshua. Patricia, as a witness for the defense, denied entering the Taylor apartment. She testified that she first saw the television set when Wilson put it into the taxi and that she, Wilson and Joshua then went to Frank’s Pawn Shop where after leaving the set, they separated. She testified that she received no money from the pawn of the set and entered the pawn shop for the sole purpose of getting the cab fare which Wilson paid. Mrs. Taylor located her set at Frank’s Pawn Shop the next day and identified it at the trial. Her record player was not found. Sarah Wallace, on cross examination,, stated that Mrs. Taylor came home about 4 p.m. and that she did not talk to her until 8 p.m. because Wilson had threatened her.

It is apparent from a review of the record that there was substantial direct evidence of every element of the crime charged and that there was no variance between the indictment and the proofs The defendant’s assignment of error based on the failure of the court to grant his motion for nonsuit is overruled.

The defendant contends that the trial judge failed to instruct the jury that the requisite felonious intent must be applied to the specific crime alleged, that of intent to commit the felony of larceny. That part of the court’s charge which the defendant sets out in his brief was merely a general outline of the applicable statute, G.S. 14-54, which the trial judge had just read. A reading of the entire charge discloses that thereafter the court correctly instructed the jury at least three times that they must find the breaking and entering to have been with the intent to commit the felony of larceny. When the charge of the court is considered contextually as a whole, as we are required to do, it is clear that the trial judge properly declared and explained the law arising on all phases of the evidence. Nance v. Long, 250 N.C. 96, 107 S.E. 2d 926.

We have carefully considered the defendant’s remaining assignment of error relating to the charge to the jury and find no prejudicial error.

Affirmed.

BROCK and BRItt, JJ., concur.