State v. Hill , 272 N.C. 439 ( 1968 )

158 S.E.2d 329 (1968) 272 N.C. 439

STATE of North Carolina
v.
Paul David HILL.

No. 272-W.

Supreme Court of North Carolina.

January 12, 1968.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. B. A. Harrell, for the State.

Charles B. Merryman, Jr., Charlotte, for defendant appellant.

LAKE, Justice.

In Case No. 50-249B, the indictment charges that the defendant "unlawfully, wilfully and feloniously did, by the use of an acetylene torch force open a Herring Hall-Marvin safe, of Lee A. Folgers, Incorporated, a corporation, used for storing chattels, money and other valuables." (Emphasis added.) As to this safe, the evidence for the State was:

"Not anything was kept in that safe on June 13th and 14th of 1967. Not a thing. It had just been purchased for money, for a money safe. * * * Its design and purpose was for keeping the valuables of this corporation inside of it. We were to bolt it to the floor in the showroom in full view of the public and we just hadn't got to it."

G.S. § 14-89.1 is the statute creating and describing the offense charged in this bill of indictment. It provides:

"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." (Emphasis added.)

It is elementary that a criminal statute must be construed strictly. State v. Garrett, 263 N.C. 773, 140 S.E.2d 315; State v. Heath, 199 N.C. 135, 153 S.E. 855, 87 A.L.R. 37; Strong, N.C.Index, Statutes, § 5. Adams, J., speaking for the Court in the Heath case, said: "The forbidden act must come clearly within the prohibition of the statute, for the scope of a penal statute will not ordinarily be enlarged by construction to take in offenses not clearly described; and any doubt on this point will be resolved in favor of the defendant."

In State v. Whitehurst, 212 N.C. 300, 193 S.E. 657, 113 A.L.R. 740, Stacy, C. J., speaking for the Court, said:

"By the rule of strict construction, however, is not meant that the statute shall be stintingly or even narrowly construed (State v. Earnhardt, 170 N.C. 725, 86 S.E. 960), but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. United States v. Wiltberger, 5 Wheat., 76, 5 L. Ed. 37. Criminal statutes are not to be extended by implication or equitable construction to include those not within their terms, for the very obvious reason that the power of punishment is vested in the legislative, and not in the judicial department. It is the General Assembly which is to define crimes and ordain their punishment."

In G.S. § 14-89.1 the General Assembly has seen fit to provide for the imposition of a sentence of imprisonment up to life upon conviction of the offense there described. It has made an element of that offense the fact that the safe forced open be one "used for storing money or other valuables." Obviously, this phrase was intended to qualify and restrict the words "safe or vault." At least three constructions of this qualifying phrase are conceivable: (1) Intended or designed for use for the storing of money or other valuables; (2) actually containing money or other valuables at the time of the forcible opening; (3) kept and customarily used for the storing of money or other valuables as of the time of the forcible opening.

To adopt the first of these possible constructions would deprive the qualifying phrase of meaning, for all practicable purposes, since the words "safe or vault," in themselves, connote a receptacle for the keeping of things of value. To adopt the second of the above possible constructions of the qualifying phrase would, in our opinion, be a strained construction of the statute, for to give it that meaning would prevent a conviction of one who, by the means specified in the statute, forces open a safe habitually used by the owner for the keeping of money or other valuables, but which, at the time of the forcible opening, happens to contain nothing of value. The third of the above possible constructions, therefore, is, in our opinion, the meaning intended by the Legislature and we so construe the statute.

We are brought, therefore, to the question of whether one has committed the offense forbidden by this statute, for which he may be imprisoned for the remainder of his life, when, with the requisite intent and by one of the specified methods, he forcibly opens a newly acquired safe, not yet installed in its intended location in the owner's place of business and which has never been used by the owner as a container for anything. We think the answer must be "No," and that the evidence of the State in Case No. 50-249B showed conclusively that one of the essential elements of the crime charged in the indictment was not present. Therefore, the defendant's motion for judgment of nonsuit in that case should have been allowed and the judgment in that case must be reversed.

In Case No. 50-249, in which the defendant was charged in the indictment with breaking and entering the building, and in Case No. 50-249A, in which the defendant was charged in the indictment with the forcible opening of the two-door safe, the evidence of the State was clearly sufficient to require the submission of the issue to the jury, and the denial of the motion for judgment of nonsuit in each of those cases was proper.

The test of the sufficiency of the State's evidence to withstand a motion for judgment of nonsuit in a criminal action is the same whether the evidence is circumstantial, direct, or a combination of both. State v. Tillman, 269 N.C. 276, 152 S.E.2d 159; State v. Bogan, 266 N.C. 99, 145 S.E.2d 374. To survive the motion for nonsuit, it is not necessary that the Court be of the opinion that the evidence is sufficient to establish each element of the offense beyond a reasonable doubt. It is enough that there is substantial evidence of each element of the offense. If so, the issue must be submitted to the jury, and it is a question for the jury whether the evidence establishes each element of the crime beyond a reasonable doubt. State v. Bogan, supra; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. When the evidence relied upon to establish an element of the offense charged is circumstantial, the court must charge the jury that it must return a verdict of not guilty unless the evidence points unerringly to the defendant's guilt and excludes every other reasonable hypothesis. State v. Stephens, supra. It is not necessary, however, that the judge must so appraise the evidence in order to overrule the motion for judgment of nonsuit.

The State introduced substantial evidence of each element of the offense of breaking and entering the building and of the offense of the forcible opening of the two-door safe, as charged in the indictment in Case No. 50-249 and 50-249A, respectively. The State also introduced substantial evidence to show that the defendant was the person who committed both of these offenses. The question of his guilt or innocence was, therefore, properly submitted to the jury in those two cases.

There was no error in admitting in evidence the color photographic slides prepared by the witness Toomey from photographs taken by him of the arms and hands of the defendant while the defendant was in jail two days after the break in occurred, or in permitting them to be exhibited to the jury by flashing them upon a screen in the courtroom. This evidence was offered and admitted for the purpose of illustrating the testimony of this witness. He testified that the slides accurately depicted the condition which he observed upon the defendant's hands and arms. With the respective slides so shown upon the screen, he pointed out burn marks and blisters on each hand. "[W]here there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy." State v. Gardner, 228 N.C. 567, 46 S.E.2d 824.

In any event, the witness Carr had previously testified that, at the time of the defendant's arrest on the preceding day, he observed pock mark burns and blisters on his arms and fingers, and the defendant himself testified to the presence of such burns. Mr. Carr's testimony that when he saw the burns, on the day before the pictures were taken, the burns were "much worse" because they were fresher than they appeared in the pictures does not support the defendant's contention that the introduction of the pictures in evidence prejudiced his case. It was for this reason only that Mr. Carr testified that the pictures did not correctly represent the appearance of the defendant's arms and hands as they were when he saw them on the day before the pictures were taken. There was nothing in his testimony to suggest that the pictures showed any burn marks or blisters which he did not observe on the day of the arrest.

The remaining assignments of error with reference to the admission of evidence have not been discussed in the defendant's brief and are, therefore, deemed abandoned. We have, nevertheless, examined these portions of the record and concur in the conclusion, apparently reached by the defendant's counsel, that these exceptions are without merit.

As to Case No. 50-249: No error.

As to Case No. 50-249A: No error.

As to Case No. 50-249B: Reversed.

PARKER, C. J., concurs in result.