State v. Burgess

160 S.E.2d 110 (1968) 1 N.C. App. 104

STATE of North Carolina
v.
William Francis BURGESS.

No. 68SC14.

Court of Appeals of North Carolina.

March 20, 1968.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Ralph Moody for the State.

Boyce, Lake & Burns, by Eugene Boyce, Raleigh, for defendant appellant.

BRITT, Judge.

Among his assignments of error, defendant contends that the trial court erred in failing to grant his motion for judgment as of nonsuit.

The pertinent language of G.S. § 14-54 is, "If any person, with intent to commit a felony or other infamous crime therein, shall break or enter * * * any storehouse, shop * * * or other building where any merchandise * * * or other personal property shall be * * * he shall be guilty of a felony * * *." (Emphasis added.) The breaking of the store window, with the requisite intent to commit a felony therein, completes the offense even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building. State v. Jones, 272 N.C. 108 (1967), 157 S.E.2d 610, and cases cited therein.

Defendant's motion for judgment as of nonsuit was properly overruled. The circumstances in this case make it a question for the jury. State v. Johnson, 1 N.C. App. 15 (1968), and cases cited therein.

Defendant contends that "the trial court erred in allowing the State's witness, Mr. Branch, to testify about an alleged verbal confession made by defendant, for that the State had failed theretofore to prove the corpus delicti."

The corroboration of the confession necessary to support its introduction into evidence can be shown by circumstances. State v. Whittemore, 255 N.C. 583, 589, 122 S.E.2d 396; State v. Thomas, 241 N.C. 337, 85 S.E.2d 300 (1954); State v. Cope, 240 N.C. 244, 247, 81 S.E.2d 773; 23 C.J.S. Criminal Law § 817(6) p. 185. A confession will be sufficient if there be such extrinsic corroborative circumstances, as will, when taken in connection with the confession, establish the prisoner's guilt in the minds of the jury beyond a reasonable doubt. State v. Whittemore, Supra. The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant's admission, satisfies the jury of the defendant's guilt beyond a reasonable doubt. Jordan v. United States (4th Cir.), 60 F.2d 4, 5 (1932), and cases cited therein.

The State showed by testimony of Mr. Carter that the pharmacy window was not broken at 7 :00 p. m. Some five hours later, at around 12:15 a. m., Deputy Branch found it broken, with the outside screen pushed in, and found the defendant with gloves on and a pry bar in his hand concealed in some bushes a short distance from the broken window. He later admitted to officers that he broke the window, that he intended to blow the safe with nitroglycerin to get drugs, and that there were others with him in an automobile which had nitroglycerin in a sling in the back seat. There was sufficient evidence aliunde the confession to corroborate its use and admit it to the jury.

Defendant assigns as error comments by the solicitor in his argument to the jury to the effect that questions asked by the defendant's attorney indicated some knowledge of the crime by the defendant. The record discloses that upon objection by defendant's counsel, the trial judge adequately instructed the jury not to consider any question by the attorney as evidence against the defendant.

The control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and it is only in extreme cases of abuse and when the trial court does not intervene or correct an impropriety that a new trial may be allowed on appeal. State v. Barefoot, 241 N.C. 650, 657, 86 S.E.2d 424; State v. Bowen, 230 N.C. 710, 711, 55 S.E.2d 466; State v. Horner, 139 N.C. 603, 52 S.E. 136.

We hold that the impropriety of the argument by the solicitor was cured by the instruction of the trial judge.

We have carefully reviewed the other exceptions and assignments of error cited by defendant but find them without merit.

The record indicates that defendant's court-appointed attorney represented him well in the trial below and in his appeal to this Court. The defendant had a fair trial, free from prejudicial error.

No error.

MALLARD, C. J., and BROCK, J., concur.