State v. Sawyer

196 S.E.2d 250 (1973)

283 N.C. 289

STATE of North Carolina v. Lester SAWYER.

No. 76.

Supreme Court of North Carolina.

May 9, 1973.

*255 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Roy A. Giles, Jr., and Associate Atty. John M. Silverstein, Raleigh, for the State.

S. Thomas Walton, Asheville, for defendant appellant.

BOBBITT, Chief Justice.

Assignments of Error Nos. 10 and 11 relate to the denial of defendant's motions for judgments as in case of nonsuit. The rules applicable when testing the sufficiency of the evidence to withstand a motion for judgment as in case of nonsuit have been often stated and need not be repeated. See State v. Vestal, 278 N.C. 561, 567, 180 S.E.2d 755, 759-760 (1971), and cases cited. When considered in the light most favorable to the State, the direct and circumstantial evidence was sufficient to require that it be submitted to the jury in respect of the felonious breaking and entering and the felonious assault charges and to support the verdicts of the jury.

In Assignments of Error Nos. 14, 15, 16, 17 and 18, defendant quotes excerpts from the charge and asserts the court erred in so charging the jury. In these assignments, defendant does not indicate in what particular any of the quoted excerpts is erroneous. He ignores the requirement of Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783, 797, as interpreted in numerous decisions of this Court, that "always the very error relied upon shall be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is." State v. Mills, 244 N.C. 487, 94 S.E.2d 324 (1956). Moreover, we perceive no error prejudicial to defendant in any of these excerpts.

Assignments of Error Nos. 4, 5, 6, 8 and 9 refer to the admission over defendant's general objection of testimony of Roberts, Russell and Ramsey as to statements made to them by Ward shortly after Ward was injured. "The general admission of evidence competent for a restricted purpose will not be held reversible error in the absence of a request at the time that its admission be restricted." 7 N.C. Index 2d, Trial § 17. See also Rule 21, Rules of Practice in the Supreme Court, 254 N.C. 783, 803. Obviously, the testimony to which these assignments refer was offered as tending to corroborate the testimony of Ward. Undoubtedly, if defendant had so requested, the trial judge would have given an explicit instruction to the effect that this evidence was competent for consideration only as corroborative testimony.

Assignment of Error No. 20 is based on defendant's exception to the denial of his motions after verdict for the arrest of judgment in each of the two cases in which verdicts of guilty were returned. Defendant did not then state any ground on which he based these motions. On appeal, he refers only to his motion to arrest judgment in the case in which defendant was found guilty of felonious breaking and entering. He asserts that the verdict of not guilty in the larceny count requires that judgment be arrested in the felonious breaking and entering count. This contention, is without merit. Pertinent legal principles include the following: "Under G.S. § 14-54, if a person breaks or enters one of the buildings described therein 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 he accomplishes his felonious intent. . . . [H]is criminal conduct is not determinable on the basis of the success of his felonious venture." State v. Smith, 266 N.C. 747, 147 S.E.2d 165 (1966); State v. Nichols, 268 N.C. 152, 150 S.E.2d 21 (1966).

Defendant's brief states no reason or argument and cites no authority in support of Assignments of Error Nos. 1, 2, 3, 7, 12, 13 and 19. Hence, they are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810.

*256 Assignment of Error No. 18 is based on defendant's exception to the court's failure to pronounce judgment on the verdict as stated in the words of the foreman. The record pertinent to this assignment quoted in our preliminary statement indicates that the presiding judge failed to hear or fully comprehend what the foreman had said. Under the circumstances, we think the judgment in the felonious assault case must be based on the verdict as stated in the words of the foreman.

The verdict as returned by the jury did not incorporate all of the elements of felonious assault. It must be treated as a verdict of guilty of assault with a deadly weapon. Hence, the maximum punishment was imprisonment for a term of two years.

Although the sentence pronounced in the two judgments are to run concurrently, the judgment in the felonious assault case is modified to provide for a sentence of two years in lieu of a sentence of five years; and, upon certification of this opinion to the superior court, a new commitment will be issued to reflect this modification of the judgment. As heretofore the sentences pronounced in the judgment for felonious breaking and entering and in the modified judgment for assault with a deadly weapon are to run concurrently.

The conclusion reached is as follows: There was no error in the trial or judgment in the felonious breaking and entering case. There was no error in the trial and verdict of guilty of assault with a deadly weapon in the felonious assault case; however, the judgment in the assault case is modified so as to reduce the sentence from five years to two years and, as so modified, is affirmed.

Felonious breaking and entering case: No error.

Assault case: No error in trial; judgment modified and affirmed.