State v. McNeil

220 S.E.2d 401 (1975)

28 N.C. App. 125

STATE of North Carolina v. Jimmy Lawrence McNEIL and Robert Atkins.

No. 7510SC487.

Court of Appeals of North Carolina.

December 17, 1975.

Certiorari Denied and Appeal Dismissed March 2, 1976.

*402 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. T. Buie Costen, Raleigh, for the State.

Joyner & Howison by Odes L. Stroupe, Jr., Raleigh, for defendant-appellant Jimmy Lawrence McNeil.

Howard P. Satisky, Raleigh, for defendant-appellant Robert Atkins.

Certiorari Denied and Appeal Dismissed by Supreme Court March 2, 1976.

MARTIN, Judge.

Defendants' first assignment of error is directed at the denial of their motions for nonsuit based on an alleged fatal variance between the evidence and the bills of indictment.

The indictments of each defendant charge breaking and entering a "building occupied by J. M. Chambers used as a dwelling house located at Route 10, Box 257A, Raleigh, North Carolina." G.S. 14-54 provides that "any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2." The statute defines "building" as "dwelling, dwelling house, uninhabited house. . . and any other structure designed to house or secure within it any activity or property."

Thus, the indictment would, in this pertinent part have been sufficient if it had stated "building occupied by J. M. Chambers located at Route 10, Box 257A, Raleigh, North Carolina." State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972).

Additional allegations of the indictment are surplusage.

Defendants' contention that it is the "uncontradicted evidence" of the State that the building broken into was not located at the address stated in the indictment ignores the testimony of Anna Faison Lyons. Without objection, she testified "[a]s to whether or not I did break into Mr. Chambers' house at Route 10 on the 18th of October, 1973, across from Holding Technical Institute, yes, I did." Her subsequent testimony and the prior evidence of Mr. Chambers clearly identify the building involved and distinguish it from the personal residence of Mr. Chambers.

The cases of State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965); State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967), and State v. Watson, 272 N.C. 526, 158 S.E.2d 334 (1968), relied upon by the defendants are distinguishable. In each case, corporations were involved in the variance between *403 indictment and proof. In this case, there is no question that the custody and control of the building involved was vested in J. M. Chambers as set forth in the indictment. We hold that there is no fatal variance between the indictment and the evidence. This assignment of error is overruled.

The defendants' second assignment of error is that "The court committed prejudicial error during the course of the trial by improperly expressing an opinion with regard to an objection made by defendant." This assignment of error is based on defendants' exception number 1 which was taken during direct examination of State's witness James M. Chambers and when the following occurred:

"My name is James M. Chambers. As of the 18th of October, 1973, I was living out on known as Old Smithfield Road, RF 10 out of Raleigh. Route 10, near Holding Technical Institute. As to what sort of premises I was living in, I was living in my house. As to how long I had been living in that house, as of the 18th of October, oh, about a little over two and a half years. Now, I was not living in the house that was broken into. Mr. Satisky: Objection. Mr. Stroupe: Objection and motion to strike. The Court: Members of the jury, disregard the testimony of the witness to the fact that he was not living in the house that was broken into. EXCEPTION NO. 1."

Defendants say they were objecting and moving to strike the response of the witness because it assumed that a house was "broken into." They argue that the judge should have instructed the jury to disregard the implication by the witness that the house was in fact broken into but instead instructed the jury in such a manner that this implication was reinforced. Thus, they say, the court expressed an opinion on the evidence in violation of G.S. 1-180.

Defendants did not specify what portion of the testimony they wanted stricken and the judge, quite reasonably, struck the sentence immediately preceding the objection that contained the offensive testimony.

For failure of the defendants to single out the objectionable statement and make that alone the subject matter of their motion, the court could have properly overruled the objection. The court's action in striking the last full sentence of the witness's testimony appears reasonable under the circumstances. This assignment of error is overruled.

We have carefully examined all of defendants' remaining assignments of error and find no prejudicial error such as would warrant the granting of a new trial.

Accordingly, in the trial and judgments appealed from we find

No error.

BROCK, C. J., and VAUGHN, J., concur.