State v. Chaney

189 S.E.2d 594 (1972)

STATE of North Carolina v. Steve CHANEY.

No. 7217SC203.

Court of Appeals of North Carolina.

June 28, 1972.

*595 Atty. Gen. Robert Morgan, by Associate Atty. Gen. Charles A. Lloyd, for the State.

Gwyn, Gwyn & Morgan, by Melzer A. Morgan, Jr., Reidsville, court-appointed attorneys, for defendant-appellant.

CAMPBELL, Judge.

Defendant asserts that the evidence was insufficient to sustain his conviction and that his motion for judgment as of nonsuit should have been sustained. In this regard defendant maintains that the State failed to prove that he had had any knowledge of the felonious larceny by Brimm and the assistance he rendered Brimm in disposing of the copper wire was not for the purpose of enabling Brimm to escape detection and arrest. There was ample evidence to show that Brimm participated with Hadyn in the felonious larceny of the copper wire. The activities of the defendant from the time Brimm and Hadyn woke him up at 1:45 a. m. and he got his automobile and took the wire to the place where it was then hidden in the weeds some 700 feet from his home, and then the next day accompanied Brimm with the wire to Virginia where the defendant arranged for the sale and the subsequent division of the money with the defendant and Brimm, taking $300 and giving Hadyn only $100, presented sufficient circumstantial evidence to go to the jury. This evidence would support a jury finding that defendant knew Brimm had not purchased the wire from Hadyn and that the wire had been stolen. Defendant's later conduct in hiding the wire and then taking it to Virginia and selling it would tend to show that defendant was assisting Brimm with the intention and for the purpose of enabling Brimm to escape detection and arrest for larceny. The case was properly submitted to the jury.

The defendant, in his second assignment of error, asserts error in the refusal to give the defendant's request for a charge defining "reasonable doubt", and instead the court instructed the jury using the charge taken from the North Carolina Pattern Instructions, N.C.P.I., Criminal, § *596 101.10, wherein "reasonable doubt" was compared with "a possibility of innocence". We do not commend this Pattern Jury Instruction. "Reasonable doubt" has been explained and thoroughly defined in the case of State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Nothing needs to be added to what has already been said in the Hammonds case. While we do not commend the instruction given in the instant case, we do not find any prejudicial error to the defendant.

The defendant next assigns as error certain questions asked of the witness Brimm by the trial judge. We have reviewed those questions and think they come within the rule of clarification and were therefore proper and not prejudicial to the defendant.

The defendant next assigns as error that portion of the solicitor's argument in which he urged the jury to believe a part of the testimony of the witness Brimm and to disbelieve a part of it. Brimm had testified that he did not know the copper wire was stolen and that he had told the defendant that the wire was not stolen. The solicitor, in his argument to the jury, merely pointed out that the facts were such that the defendant was bound to have known that the wire was stolen. We find that the solicitor's argument was within the bounds of propriety. The cases relied upon by the defendant are distinguishable. We find no merit in this assignment of error.

The defendant also assigns as error the sufficiency of the bill of indictment. We have considered this assignment of error and we find the bill of indictment sufficient.

We conclude that the defendant has had a fair trial free of prejudicial error.

No error.

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