State v. Tolley

Annotate this Case

226 S.E.2d 672 (1976)

30 N.C. App. 213

STATE of North Carolina v. Dennis K. TOLLEY.

No. 7628SC182.

Court of Appeals of North Carolina.

July 21, 1976.

*674 Atty. Gen. Rufus L. Edmisten by Associate Atty. Richard L. Griffin, Raleigh, for the State.

Cecil C. Jackson, Jr., Asheville, for defendant-appellant.

ARNOLD, Judge.

Defendant assigns error to the failure of the court to grant his motion for judgment of dismissal. He contends that as a matter of law he is not guilty of breaking and entering because he had permission from an occupant of the home, the Rigsby's son, Michael, to enter the home. We disagree.

A person entering a residence with the good faith belief that he has the consent of the owner or occupant or his authorized agent is not chargeable with the offense of breaking and entering. See 93 A.L.R.2d 534, § 3, Rule that Consent Constitutes a Defense. However, the circumstances of the instant case do not involve parties with good faith beliefs that they had consent to enter the residence. Mrs. Rigsby testified that Burnette (the defendant's accomplice) had been told never to come to the Rigsby home.

Defendant could not have reasonably believed that Michael Rigsby had authority to permit defendant to enter his parents' residence for the purpose of stealing valuables which belonged to his parents, and not to Michael Rigsby. Evidence establishes that Michael Rigsby knew of defendant's and Burnette's plot and felonious intent to enter into the Rigsby home and steal his parents' valuables. Defendant did not have authorized consent to enter the Rigsby home. See State v. Friddle, 223 N.C. 258, 25 S.E.2d 751 (1943); State v. Rowe, 98 N.C. 629, 4 S.E. 506 (1887).

There is no merit to defendant's next contention that the trial court erred in allowing Mr. Rigsby to testify regarding the value of the stolen property. Even though a witness is not qualified as an expert he may testify as to the value of his personal property. State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920 (1944); see also, Stansbury, N.C. Evidence, Brandis Revision, § 128, Value.

There is also no merit in defendant's argument that the court erred in failing to limit the scope of testimony given by Rigsby for purposes of corroborating the witness, Hunter. He argues that the corroborative testimony exceeded the scope of Hunter's testimony. "Slight variances in corroborating testimony do not render such testimony inadmissible." State v. Laws, 16 N.C.App. 129, 191 S.E.2d 416 (1972).

Defendant next excepts to the finding of fact by the court on voir dire that the arresting officer made no inducements to defendant in order to obtain a confession. Since the trial court's finding of fact that "the officer made no offer of hope of reward or inducement for the defendant to make a statement" is supported by competent evidence, it is conclusive on appeal. State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974).

Finally, defendant contends that the trial court erred in its instructions to the jury. He argues that the trial court erred in recapitulating the evidence by mentioning other persons' involvement in the crime who were not on trial or being charged in the crime. Defendant's argument *675 is without merit. G.S. 1-180 requires the trial judge to recount the evidence presented at trial and to explain the law applicable. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). Furthermore, objection to the trial court's recapitulation of the evidence should have been made before the jury retired so as to afford the court an opportunity for correction; otherwise, the objections are deemed to have been waived and will not be considered on appeal. State v. Hargrove, 27 N.C.App. 36, 217 S.E.2d 715 (1975).

Defendant also contends that there was no evidence to support the court's charging the jury on nonfelonious larceny, and that such a charge was error. Defendant shows no prejudice by the court's instructions on the lesser charge of nonfelonious larceny. State v. Chase, 231 N.C. 589, 58 S.E.2d 364 (1950); State v. Bunton, 27 N.C.App. 704, 220 S.E.2d 354 (1975).

All of defendant's assignments of error have been reviewed, and we find

No error.

PARKER and HEDRICK, JJ., concur.