State v. Best , 232 N.C. 575 ( 1950 )

61 S.E.2d 612 (1950) 232 N.C. 575

STATE
v.
BEST.

No. 292.

Supreme Court of North Carolina.

November 1, 1950.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

Charles L. Abernethy, Jr., New Bern, for defendant.

STACY, Chief Justice.

The question for decision is whether the State's evidence survives the demurrer and suffices to carry the case to the jury on any or all of the counts in the bill of indictment. The trial court answered in the affirmative in respect of all three counts, and we approve.

The defendant was present, aiding and abetting the witness Godfrey at the time he entered the house and brought out the stolen chattels. This inculpates him as a principal in the crime then being committed. State v. Johnson, 226 N.C. 671, 40, S.E.2d 113; State v. Bell, 205 N.C. 225, 171 S.E. 50; State v. Whitehurst and Manning, 202 N.C. 631, 163 S.E. 683; State v. Jarrell, 141 N.C. 722, 53 S.E. 127.

The fact that there was no burglarious breaking and entering at the time can avail the defendant naught. State v. Mumford, 227 N.C. 132, 41 S.E.2d 201, 202. Indeed, the prior breaking and entering by Godfrey, when alone or when the defendant was not with him, has no bearing on the case. G.S. § 14-54.

State v. Mumford, supra, speaks directly to the point: "Under the statute it is unlawful to break into a dwelling with intent to commit a felony therein. It is likewise unlawful to enter, with like intent, without a breaking. Hence, evidence of a breaking, when available, is always relevant, but absence of such evidence does not constitute a fatal defect of proof."

Then, too, the defendant's possession of the fruits of the crime recently after its commission justified the inference of guilt on his trial for larceny. State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725.

Moreover, there is ample evidence to support the third count in the bill of receiving stolen goods knowing them to have been stolen. G.S. § 14-71; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814. This would sustain the judgment and repel the motion for nonsuit, even if the first two counts were eliminated. State v. Smith, 226 N.C. 738, 40 S.E.2d 363; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Toole, 106 N.C. 736, 11 S.E. 168.

No sufficient reason has been shown to justify an interference with the results of the trial. Hence, the verdict and judgment will be upheld.

No error.