State v. Laughinghouse

251 S.E.2d 667 (1979) 39 N.C. App. 655

STATE of North Carolina
v.
Donald LAUGHINGHOUSE.

No. 783SC915.

Court of Appeals of North Carolina.

February 6, 1979.

Atty. Gen. Rufus L. Edmisten, Raleigh by Associate Atty. Gen. Benjamin G. Alford, for the State.

Beaman, Kellum, Mills & Kafer by David P. Voerman, New Bern, for defendant-appellant.

ARNOLD, Judge.

There is no merit in defendant's contention that he was entitled to a judgment as of nonsuit. The evidence, considered as it must be in the light most favorable to the State, see generally 4 Strong's N.C.Index 3d, Criminal Law § 104, is clearly sufficient to establish each essential element of the offense and to support a conviction. Nonsuit was properly denied. Id. § 106.

Defendant next contends that he was prejudiced by a violation of G.S. 15A-1213. That statute, entitled "Informing prospective jurors of case," instructs the judge to briefly inform prospective jurors about the case, and concludes: "The judge may not read the pleadings to the jury." In the case sub judice the trial court read a portion of the indictment to the jury as part of his charge to them after the close of the evidence.

Now this is the case of the State of North Carolina vs. Donald Laughinghouse, a criminal proceeding wherein the [defendant stands charged in the bill of indictment that "on or about the 12th day of December, 1977, in Craven County, that he, Donald Laughinghouse unlawfully and wilfully did feloniously receive one 23 Channel radio and one microwave oven, the personal property of Joyce French Howell, having a value of Six Hundred ($600.00) dollars, knowing that the property to have been feloniously taken, stolen or carried away."]

Why the legislature would specify that "the judge may not read the pleadings to the jury" is not clear. The purpose of the statute, when read as a whole and considered together with the Official Commentary, apparently is to avoid giving jurors "a distorted view of the case" through the "stilted language of indictments." Official Commentary to G.S. 15A-1221, referring also to G.S. 15A-1213. Since finding a violation of the statute here would in no way serve that purpose we find no such violation. The jurors had heard all of the evidence, and to infer that they would be given a distorted view of the case by a mere reiteration of the charge couched in the words of the indictment would be illogical.

Defendant next argues that the charge to the jury was improper because the judge failed to instruct the jury that the receiving of stolen property must be with "felonious intent." This Court has already recognized that there are other words which describe the requisite intent as adequately as the word "felonious" does. State v. Ingram, 10 N.C.App. 709, 179 S.E.2d 814 (1971). The judge here defined the necessary intent as "[t]he intent to convert property to [defendant's] own use or deprive the owner of its use permanently." This definition is correct and we find it sufficient. We note, in addition, that the phrase used by the judge to denote the necessary intent was "dishonest purpose," a phrase much like "dishonest motive," which has been used by our Supreme Court in stating the required intent. See State v. Tilley, 272 N.C. 408, 158 S.E.2d 573 (1968).

Error is also assigned to the alleged inadequacy of the limiting instruction given with regard to evidence of a prior act of misconduct on the part of defendant. However, defendant failed to object to the admission of the evidence, or to request a limiting instruction, so he was not entitled to such an instruction, 4 Strong's N.C.Index 3d, Criminal Law § 95.1, and he cannot now complain of the adequacy of the instruction given.

We find that defendant received a fair trial, free from prejudicial error.

No error.

PARKER and WEBB, JJ., concur.