State v. Crowe

BROCK, Chief Judge.

Defendants contend that the instructions to the jury were erroneous. The crux of their argument is that the instructions failed to contain a charge on the lesser included offenses of non-felonious breaking or entering and nonfelonious larceny. The necessity of charging on lesser included offenses arises only when there is evidence upon which the jury could find that a lesser included offense was committed. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954).

The State’s evidence tends to show that when the officers arrived, the door to the service station was open, and the two defendants were seen coming out of the doorway. One deputy sheriff testified that both defendants were inside the store at the time the officers arrived. Defendant Buchanan threw down a box containing goods taken from the store, and defendant Crowe was apprehended with cartons of cigarettes in his arms. A tire tool and gloves were found in the store. In our opinion this evidence supports a finding of a felonious breaking or entering, not a lesser crime. It also supports a finding of larceny of property committed pursuant to a.breaking or entering (G.S. 14-72 [b] [2]), not a lesser offense.

According to defendants’ versions of the occurrence, they neither broke nor entered the building and did not steal anything. Their versions would support findings of not guilty only. There was no evidence from which the jury could have found defendants guilty of lesser included offenses. This assignment of error is overruled.

In their second argument, defendants contend that the trial court erred when it denied their motion to dismiss for failure to get a speedy trial. Defendants, in support of this contention, note that the warrants were issued on 23 August 1971 and that the trial began on 29 April 1974.

“The constitutional right to a speedy trial protects an accused from extended imprisonment before trial, from public suspicion generated by an untried accusation, and from loss of witnesses and other means of proving his innocence resulting from passage of time.” State v. Spencer, 281 N.C. 121, 124, 187 S.E. 2d 779 (1972). In State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274 (1969), the Supreme Court stated that undue delay cannot be defined in terms of days, months, or years. The length of the delay, the cause of the delay, waiver by the defendant, and prejudice to him are factors to be considered in determining whether the delay is unreasonable. However, “[t]he burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution.” State v. Johnson, supra at 269, 167 S.E. 2d at 278.

In our opinion defendants have failed to carry their burden. There are no allegations that any part of the delay was the result of the State’s wilfulness or neglect. On three occasions one of the defendants requested and received a continuance. On one occasion defendant Buchanan failed to appear in court, resulting in the issuance of an instanter capias. We think it clear that “ [a] defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice.” State v. Johnson, supra at 269, 167 S.E. 2d at 278. This argument has no merit.

Defendants’ assignment of error which contends that the manner of polling the jury was improper is fleckless. The record on appeal, as settled by the trial judge, shows clearly that the jury was polled in the approved manner.

We have considered defendants’ remaining assignment of error and have found it to be without merit. In our opinion defendants had a fair trial free from prejudicial error.

No error.

Judges Vaughn and Martin concur.