State v. Stubbs

145 S.E.2d 896 (1966)

266 N.C. 274

STATE v. Darrell Gray STUBBS.

No. 658.

Supreme Court of North Carolina.

January 14, 1966.

*898 John A. Dwyer, Whiteville, for defendant.

Atty. Gen. T. W. Bruton, Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

DENNY, Chief Justice.

The appellant sets out eighteen assignments of error in his case on appeal. However, none of these assignments are brought forward in his brief and argued, or authority cited in support thereof, as required by Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 810.

The defendant concedes that if the statements made by him to the State's witnesses were properly admitted, the evidence was sufficient to withstand the defendant's motion for judgment as of nonsuit, interposed at the close of the State's evidence and renewed at the close of all the evidence.

The defendant contends, however, that the court below committed error in allowing witnesses to testify as to the statements made by the defendant in the absence of a showing that such statements were made voluntarily. The evidence with respect to the statements made by the defendant were admitted without objection.

As a general rule, a confession is presumed to be voluntary, and the burden is on the accused to show to the contrary. State v. Hamer, 240 N.C. 85, 81 S.E.2d 193; State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Richardson, 216 N.C. 304, 4 S.E.2d 852. Likewise, in 20 Am.Jur., Evidence, § 536, page 456, it is said: "In a majority of the jurisdictions a confession is presumed to be, or is regarded as prima facie, voluntary and, hence, if not objected to by the defendant, should be admitted in evidence by the court, unless there is something in the confession which indicates its inadmissibility. * * *."

The defendant's contention is without merit.

The appellant further argues and contends in his brief that the court committed error in its charge to the jury in defining "breaking and entering." However, the appellant does not set out any part of the charge with an exception entered thereto, as required by the Rules of this Court, in challenging the correctness of the charge. Even so, the alleged error argued in the brief is that, in charging on breaking and entering, the court failed to charge that the breaking had to be "unlawful" or "wrongful." The court, after reading the pertinent provisions of G.S. § 14-54, and charging with respect thereto on breaking and entering, then stated:

"So, on the first count contained in the Bill of Indictment, that is the count of breaking and entering, if the State has satisfied you from the evidence and beyond a reasonable doubt that on or about the 26th day of November, 1963, the defendant Darrell Gray Stubbs broke and entered or aided and abetted and assisted in the breaking and entering of Leder Brothers, Inc., building here, and further satisfied you from the evidence and beyond a reasonable doubt that valuable securities were in said building, and that he * * * intentionally broke and entered with the intent to commit the felony of larceny, that is to take, steal, and carry away the personal property of Leder Brothers kept in said building, and further, with the felonious intent to permanently deprive Leder Brothers of its personal property and convert it to his, that is Mr. Stubbs' own use or the use of some other person not entitled thereto, then it will be your duty to return a verdict of guilty as charged in the first count in the Bill of Indictment."

*899 If one breaks and enters or enters with intent to commit a felony, he does so unlawfully, and the contentions of the defendant are without merit.

The appellant states in his brief that the bill of indictment charges defendant in the second count with the stealing of merchandise in excess of the value of $200.00; that the indictment does not charge defendant with larceny by breaking and entering, although, he states, "it is agreed, that the evidence tended to show, that if any act of larceny was committed at all by the defendant, that it was committed by breaking and entering." Even so, he contends it was error not to charge the jury that it must find the value of the merchandise taken to be in excess of $200.00 before the jury could convict the defendant of a felony on the second count. We do not agree with this contention under the facts disclosed by the record. Larceny by breaking and entering a building, referred to in the bill of indictment, is a felony without regard to the value of the stolen property. State v. Brown, 266 N.C. 55, 145 S.E.2d 297; State v. Wilson, 264 N.C. 595, 142 S.E.2d 180; State v. Cooper, 256 N.C. 372, 124 S.E.2d 91. The bill of indictment charged that the defendant stole property from Leder Brothers, Inc., of the value of $359.19. The jury returned a verdict of guilty as charged on both counts in the bill of indictment.

In our opinion, the defendant has had a fair trial, free from prejudicial error, and the verdict and judgments entered below will be upheld.

No error.

BOBBITT, Justice (dissenting in part).

There was a separate judgment on each count. As to the first count, the judgment imposed a prison sentence of not less than seven nor more than ten years. As to the second count, the judgment imposed a prison sentence of not less than three nor more than five years, this sentence to begin upon expiration of the sentence on the first count.

My dissent relates solely to the second count.

If an indictment charges the larceny of property of a value in excess of $200.00 but fails to charge the larceny was accomplished by breaking and entering one of the buildings described in G.S. § 14-72, "it is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than $200.00; and, this being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury." State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.

My views are more fully stated in the concurring opinion in State v. Brown, 266 N.C. 55, 62, 145 S.E.2d 297, and cases cited therein.

Here, as to the second (larceny) count, the judge did not so instruct the jury; and, for error in failing to so charge, defendant, in my opinion, is entitled to a new trial as to the second (larceny) count.