State v. Rouse , 1982 N.C. App. LEXIS 3157 ( 1982 )

VAUGHN, Judge.

Defendant argues it was error to allow the State to ask him about the stocking cap and paper bag that were found in his car when he was found with the loaded pistol concealed in his sock. He identified the cap as being his and said the bag was similar to the one he used to carry his lunch. He also argues it was error to allow the State to ask him if he had been in the area of the First Citizens Bank that afternoon prior to his arrest. There is no merit to defendant’s argument. In the first place, the State was bound by defendant’s answers, and those answers were favorable to him. Secondly, the control of cross-examination must be left largely to the discretion of the trial judge. Most importantly, however, the questions were proper. There was evidence that defendant wanted the gun in order to get some money. The questions to which defendant now takes exception were proper to attempt to show defendant’s motive for stealing the gun. Testimony at the sentencing hearing clearly demonstrated that the questions were asked in good faith.

Defendant argues that the judge committed error because he did not instruct the jury that defendant could not be convicted if he honestly believed he had a right to possess the pistol. The argument is without merit. The jury had to believe either that defendant stole the pistol as the State’s evidence tended to show or that it was pawned to him as his evidence tended to show. The judge made it clear to the jury that to convict, they must find that defendant took the pistol without Tinney’s consent, and that at the time of the taking, he knew he was not entitled to take it. The judge’s instructions were complete and correct in all respects.

Defendant’s next argument is that the trial court erred by failing to instruct the jury on the presumption of innocence. One accused of a crime is entitled to have his guilt or innocence determined on the basis of the evidence introduced at trial, not on the grounds of official suspicion or indictment, and it has long been recognized that an instruction or presumption is one way to impress the importance of that right upon the jury. Taylor v. Kentucky, 436 U.S. 478, 56 L.Ed. 2d 468, 98 S.Ct. 1930 (1978). Failure to instruct on the presumption of innocence is not, in and of itself, prejudicial error. Kentucky v. Whorton, 441 U.S. 786, 60 L.Ed. 2d 640, 99 S.Ct. 2088, rehearing denied, 444 U.S. 887, 62 L.Ed. 2d 121, 100 S.Ct. 186 (1979); State v. Perry, 226 N.C. 530, 39 S.E. 2d 460 (1946). The judge’s instruction on the State’s duty to prove the defendant’s guilt beyond a reasonable doubt made it clear that the defendant was presumed innocent until the State proved otherwise. Moreover, in his remarks to the jury before it was impaneled, the judge said

The defendant, Mr. Rouse, has entered a plea of not guilty as to the charge and the fact that he's indicted is no evidence of his guilt. When a defendant pleads not guilty, the defendant is not required to prove that he is innocent. Rather, he is presumed to he innocent and the burden is on the State of North Carolina to satisfy you of the guilt of the defendant by the evidence and beyond a reasonable doubt in order for you to return a verdict of guilty of some crime. (Emphasis added.)

This case was tried prior to the decision of the Supreme Court in State v. Perry, 305 N.C. 225, 287 S.E. 2d 810 (1982), holding that a defendant could not be sentenced for both larceny and possession of the same property. In this case, the judge consolidated the breaking and entering case with the larceny case for sentencing, and imposed a separate sentence in the possession case. The defendant can only be punished for the breaking and entering and either the larceny or possession. The case must be remanded for the judge to enter sentence on the breaking and entering and either the larceny or possession, and arrest judgment on the remaining charge.

No error in the trial.

Remanded for resentencing.

Judges WEBB and WELLS concur.