State v. Nichols

150 S.E.2d 21 (1966)

268 N.C. 152

STATE v. William Harris NICHOLS.

No. 92.

Supreme Court of North Carolina.

September 21, 1966.

*22 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

J. W. H. Roberts, Greenville, for defendant appellant.

PER CURIAM:

The defendant excepts to the failure of the court to allow his motion for judgment as of nonsuit at the close of the State's evidence and at the close of all the evidence, the defendants having offered none.

Taken in the light most favorable to the State the evidence shows that a man from New York in a Maryland car is in Greenville, North Carolina, at 2 o'clock in the morning; that he and another occupant of the car get out of it and go to the door of the Harris Super Market; that a sound of shaking is heard by the officer; and that the glass rattled and the door came open, and that immediately afterwards the two men get back in the car and leave. A few blocks away they are apprehended and an examination of the car discloses the possession of a combination of articles that indicate substantial evidence that they are not being intended for use in any legitimate business.

While gloves, tapes, chisels, crowbars, hammers and punches all have their honest and legitimate uses, when no explanation is offered for this combination of articles by a man several hundred miles from his home, in the middle of the night, it is ample to sustain a possession of wrongful and unlawful possession of tools used in store breaking.

The fact that the shaking of the door and its opening was not followed by a physical entrance into the building does not prevent a finding by the jury that they broke and entered the building. The officers' car was close by and the men apparently became frightened and nervous from the sound of glass and the opening of the door, and fled. They had actually opened the door although they had not entered and the crime was complete upon the finding by the jury of the overt act and felonious intent which was amply supported by the evidence.

In State v. Smith, 266 N.C. 747, 147 S.E.2d 165, it is said: "[I]f a person breaks or enters * * * with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before *23 he accomplishes his felonious intent * * * [H]is criminal conduct is not determinable on the basis of the success of his felonious venture."

Another exception of the defendant is that the witness Harris was permitted to state that he observed the door and it was unlocked and it was bruised as if someone had been beating on it. He says that this constitutes an invasion of the province of the jury. However, it is merely what is known as a shorthand statement of facts, which is a well recognized method of permitting a witness to describe an incident or scene that can hardly be described in any other manner. When a witness says that a person appeared to be mad or happy or suffering, he is merely using the language that is generally used by people in describing such conditions and there is no better way to do so than that. This has been recognized by our Court as competent evidence for many, many years, and there is no error in permitting the statement to stand. Strong's Index, Vol. 2, Evidence 36, p. 281, where several North Carolina cases are cited.

It is proper for a witness to state the "instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time * * * [i]t would be a hopeless task for the most gifted person to clothe in language all the minute particulars, with their necessary accompaniments and qualifications, which have led to the conclusion he has formed." State v. Skeen, 182 N.C. 844, 109 S.E. 71.

The defendant further complains at the court's instructions as to aiding and abetting which were to the effect that if three persons were present at the time the crime was committed, were acting together, aiding and abetting each other, that it would make no difference who did the physical act of breaking open the door. This is a correct statement of the law and constitutes no error. State v. Pearson, 119 N.C. 871, 26 S.E. 117; State v. Ham, 224 N.C. 128, 29 S.E.2d 449.

The defendant further complains that the court's charge was deficient in that it did not sufficiently go into the question of the unlawful possession of tools used in store breaking, but upon consideration of the charge we find it is ample for this purpose. We, therefore, hold that in the trial of the case there was

No error.