State v. Bauguess ( 1971 )

CAMPBELL, Judge.

Defendants’ first assignment of error is directed at the trial judge’s charge to the jury relative to the law on circumstantial evidence. The court charged the jury:

“Now, members of the jury, there is [sic] no eye witnesses [sic] in this case that the defendant [sic] committed the crimes charged in these two bills of indictment. The State contends that the circumstances and evidence taken together establish the guilt of the defendants, and each of them. In other words the State relies on which [sic] is known as circumstantial evidence. Circumstantial evidence, members of the jury, is recognized and accepted as proof in court of law. However, you must find that the defendants, that is you must find the defendant, and each of the defendants, not guilty unless all the circumstances considered together, excluding [sic] avery [sic] reasonable possibility of innocence and point conclusively to guilt.”

We are of the opinion that this charge complies with the requirements set forth in State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965). There, the charge complained of appeared to place more emphasis on the circumstances being consistent with guilt rather than being inconsistent with innocence and amounted to the court assuming some of the functions of the jury. Here, the trial judge correctly placed the emphasis on the possibility of innocence and instructed the jury that to find the defendants guilty, the circumstances must exclude every possibility of innocence. The function of the jury as the fact finder was not interfered with and the State was left with the burden to satisfy the jury beyond a reasonable doubt before finding either defendant guilty.

Defendants’ second assignment of error is directed at the adjmission of testimony regarding the value of the drink box and the amount of damage done to the door. This evidence was relevant as to the force used by the defendants to carry out their intent to steal and was relevant to establish such intent. Furthermore, it is incumbent upon the defendant to show that its admission resulted in prejudice to him. State v. Temple, 269 N.C. 57, 152 S.E. 2d 206 (1967). Defendants have not made an affirmative showing of prejudice by the admission of this testimony and this assignment of error is overruled.

For the reasons stated, in the trial below there was

No error.

Judges Britt and Hedrick concur.