State v. Sneed , 38 N.C. App. 230 ( 1978 )

247 S.E.2d 658 (1978) 38 N.C. App. 230

STATE of North Carolina
v.
Irving SNEED, Jr.

No. 785SC479.

Court of Appeals of North Carolina.

October 3, 1978.

Atty. Gen. Rufus L. Edmisten, by Special Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Alan S. Hirsch, Raleigh, for the State.

William G. Hussmann, Jr., Wilmington, for defendant appellant.

MARTIN, Judge.

Defendant assigns as error the ruling by the trial court that the State's evidence supported a finding that an entry had been committed within the meaning of the applicable statute, N.C.Gen.Stat. 14-56. On this question, the State's evidence indicated defendant was standing on the street at the open door of the van with the upper part of his body inside the van. We do not find, nor have counsel referred us to, any North Carolina case defining "entry" as used in the offenses of breaking or entering, or burglary.

Black's Law Dictionary 627 (4th ed. rev. 1968) states: "In cases of burglary, the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offense." Statements to the same effect are found in 13 Am.Jur.2d Burglary § 10, 35 N.C.L.Rev. 101 (1956). It is not necessary that the party get his whole body into the house, and the least entry of any part of the body is sufficient. 12 C.J.S. Burglary § 10 (1972). In defining entry at the common law, Blackstone states:

As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries.

IV W. Blackstone, Commentaries 227. So much of the common law as has not been abrogated or repealed by statute is in full force and effect in this state. N.C.Gen. Stat. 4-1; State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936). We hold that the State's evidence was sufficient for submission of the question to the jury as to whether an entry had been committed by the defendant. Defendant's other arguments concerning his motion for nonsuit are without merit. Defendant's second assignment of error is overruled.

Defendant objected to the following jury instruction by the court: "Leaning through an open door with the upper part of his body actually in the vehicle after the door has been opened by someone who did not have the authority or permission from the owner, or from Curtis Hall, to open the door, would be an entry." In applying the law as above stated concerning the meaning of entry to this instruction, we find no error. This assignment of error is overruled.

Defendant objected to the answer of the witness Dorsey to the question, "Did he [the defendant] say anything else to you?" Dorsey answered, "I don't want to have to go back to court because I just got out of prison." The trial judge immediately sustained the objection. Defendant's objection was general, it did not refer to N.C.Gen. Stat. 15A-910 which sets out remedies where State has failed to comply with discovery statutes. Defendant did not call this statute to the attention of the court, nor did he request any relief provided by the statute. Defendant, in answering his own lawyer's questions, testified he had been convicted of common law robbery and was on parole. There was no prejudicial error. State v. Johnson, 22 N.C.App. 183, 205 S.E.2d 761 (1974).

We have examined defendant's remaining assignments of error and have found in them no merit. Both the State's evidence and the defendant's evidence support a finding that Dorsey's motor vehicle was broken or entered and his property stolen. Defendant contends he did not participate in the offenses. By its verdict the jury reconciled this question of credibility against the defendant.

No error.

BROCK, C. J., and CLARK, J., concur.