State v. White

352 S.E.2d 261 (1987)

STATE of North Carolina
v.
Winston Eugene WHITE.

No. 8626SC843.

Court of Appeals of North Carolina.

February 3, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Lemuel W. Hinton, Raleigh, for the State.

Barnes & Tomberlin by Richard H. Tomberlin, Charlotte, for defendant-appellant.

ARNOLD, Judge.

The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. State v. Litchford, 78 N.C.App. 722, 338 S.E.2d 575 (1986). Defendant contends that there is no evidence of a larcenous intent on the part of himself or Adams. We do not agree.

During the cross-examination of Blackwell, the district attorney asked, "Did you tell me last Friday in my office that at the hospital when you visited Winston White that he told you that he and Charles Adams went to the Parler's home on Logie Avenue thinking that it was the home of a drug dealer intending to rob that drug dealer?" Blackwell responded, "yes, I did."

This testimony is sufficient evidence of intent to commit larceny even though the witness later contradicted her statement.

Even without Blackwell's testimony, the intent to commit larceny in this case can be inferred from the circumstances surrounding the breaking and entering. Cf. State v. Avery, 48 N.C.App. 675, 269 S.E.2d 708 (1980); State v. Quilliams, 55 N.C.App. 349, 285 S.E.2d 617 (1982). Therefore, we hold that the evidence sufficiently satisfied the intent requirement of the offense.

Defendant also contends that his due process rights were violated when the trial judge reversed his prior ruling and submitted the charge of felonious breaking and entering to the jury. We are not persuaded by this argument.

A superior court judge has little opportunity for prolonged deliberation upon many matters involving competency of evidence, legal principles and inferences of law which arise during a trial. He must, of necessity, make immediate rulings on the questions before him in order that trials may progress with reasonable celerity. To hold that he could not in the interest of justice change, modify or reverse a ruling during the progress of a trial and, in proper cases, during term, would be to require infallibility. As was said by one of the Justices when this case was argued in this Court, to hold a superior court judge to such a standard would be tantamount to placing him in a straightjacket.

Hollingsworth GMC Trucks, Inc. v. Smith, 249 N.C. 764, 768, 107 S.E.2d 746, 749-50 (1959).

The rationale of Hollingsworth GMC Trucks is applicable to the present case where the trial judge changed his initial ruling after researching the law on felonious breaking and entering. We hold that no due process violation occurred when the trial court reversed its prior ruling and submitted the charge of felonious breaking and entering to the jury.

No error.

PHILLIPS and ORR, JJ., concur.