State v. CoffeyAnnotate this Case
222 S.E.2d 217 (1976)
289 N.C. 431
STATE of North Carolina v. Louis Raleigh COFFEY.
Supreme Court of North Carolina.
March 2, 1976.
*219 Atty. Gen. Rufus L. Edmisten and Associate Atty. Daniel C. Oakley, Raleigh, for the State.
Robert G. Summey, Forest City, for defendant.
The defendant's five assignments of error are:
(1) His motion to quash the bill of indictment should have been allowed because the indictment does not state sufficiently the location of the dwelling house alleged to have been burglarized or the property stolen therefrom;
(2) The defendant was not informed of his right to be represented by counsel when put in the lineup at which he was identified by Mrs. Matheny;
(3) In his argument to the jury, the District Attorney "argued facts which were not in evidence";
(4) "The entire judge's charge is * * biased toward the State * * * thereby expressing an opinion of the court in both tone and content";
(5) The court improperly charged the jury on second degree burglary, though all of the evidence is to the effect that the building was actually occupied at the time of the breaking and entering.
*220 No argument or citation of authority appears in the defendant's brief in support of Assignment No. 5. This assignment is, therefore, abandoned. Rule 28, Rules of Practice in the Supreme Court (old rules). See also, Rule 28(a), Rules of Appellate Procedure (new rules), 287 N.C. 671, 741.
Assignment of Error No. 4 is a broadside exception to the charge and is overruled. This Court has said repeatedly that an alleged error in the charge of the court to the jury must be specified, both as to alleged error in the charge actually given and as to an alleged failure to give an instruction required by the law. State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Robinson, 272 N.C. 271, 158 S.E.2d 23 (1967); State v. Stantliff, 240 N.C. 332, 82 S.E.2d 84 (1954); State v. Peacock, 236 N.C. 137, 72 S.E.2d 612 (1952). Notwithstanding this well settled rule, due to the serious nature of the offense charged and of the sentence imposed, we have carefully considered the charge of the trial judge to the jury and we find therein no error prejudicial to the defendant. The charge includes a full and fair summary of the evidence introduced, both by the State and by the defendant, and a clear and impartial explanation of the principles of law applicable thereto.
As to the defendant's Assignment of Error No. 3, the record shows that arguments of counsel were not recorded by the court reporter and no objection by the defendant to the argument of the District Attorney was interposed until after the jury returned its verdict, at which time the defendant made a motion for a new trial on the ground of the alleged improper argument by the District Attorney. The general rule is that an objection to argument of counsel must be made at the time of the argument, so as to give the court an opportunity to correct the transgression, if any, and any such impropriety in the argument is waived by waiting until after the verdict to enter the objection. As Justice Parker, later Chief Justice, said in State v. Smith, 240 N.C. 631, 83 S.E.2d 656 (1954), "We have held in a long line of decisions that exception to improper remarks of counsel during the argument must be taken before verdict." An exception to that general rule is recognized in capital cases where the improper argument was so prejudicial in nature that, in the opinion of the court, no instruction by the trial court could have removed it from the minds of the jury had the objection been seasonably made. See: State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Smith, supra. This exception to the general rule has no application here.
It is apparent from the record that we have before us only a brief synopsis of the evidence. If we assume that the District Attorney went beyond the actual testimony of witnesses in his argument that the defendant "turned on the oven in the kitchen and piled papers and rags on the table with the intention of burning down the house after he had taken what he wanted," there is no reason to suppose that the prejudicial effect of any overstatement could not have been corrected by an instruction by the court had objection to the argument been made in due time. Furthermore, this is not a capital case.
There is no merit in Assignment of Error No. 2. The record shows that Mrs. Matheny, the first witness for the State, made an in-court identification of the defendant as one of the intruders into her home. There was no objection to this in-court identification and no request that the court conduct a voir dire examination to determine its independent origin. The State introduced no evidence of the identification of the defendant at the lineup until after the defendant had developed this fact on his cross-examination of Mrs. Matheny. There was no objection whatever to any testimony concerning the identification at the lineup and the record discloses no irregularity therein. In Stansbury's North Carolina Evidence (Brandis Revision), § 27, it is said: "A judge may always properly exclude inadmissible *221 evidence, but ordinarily he is not required to do so in the absence of objection; and a failure to make an objection waives it. Evidence admitted without objection, though it should have been excluded had proper objection been made, is entitled to be considered for whatever probative value it may have."
Obviously, a defendant who, himself, injects incompetent evidence into the trial, may not urge its admission as ground for a new trial. In the present case, the record does not show whether or not the defendant was advised, prior to the lineup, of his right to have counsel present at the lineup. Only in his assignments of error, long after the trial was concluded, did the defendant assert that he was not so informed. The State in its exceptions to the defendant's statement of the case on appeal says: "No voir dire was ever requested before the evidence was introduced and if same had been requested it would have disclosed that the defendant was advised of his rights to have counsel present at the lineup but that he waived such rights." In this state of the record we cannot conclude that the defendant was not properly advised of his rights to counsel at the lineup.
Finally, there is no merit in the defendant's Assignment of Error No. 1 which is directed to the denial of his motion to quash the bill of indictment for the reason that it does not describe the location of the dwelling at which the burglary was committed with sufficient clarity and does not describe "the property taken" sufficiently to identify it. It is obviously not necessary that an indictment for burglary describe the property stolen by the burglar. The crime of burglary in the first degree is complete when an occupied dwelling is broken and entered in the nighttime with the intent to commit larceny therein whether or not anything was actually stolen from the house. State v. Hooper, 227 N.C. 633, 44 S.E.2d 42 (1947); State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923); State v. McDaniel, 60 N.C. 245 (1864). It is not required that the indictment describe the property which the defendant intended to steal, or that which he did steal. State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972).
It is true that an indictment for burglary is fatally defective if it fails to identify the premises broken and entered with sufficient certainty to enable the defendant to prepare his defense and to offer him protection from another prosecution for the same incident. State v. Smith, 267 N.C. 755, 148 S.E.2d 844 (1966). The indictment in the present case charges that the defendant "in the county aforesaid [Rutherford], the dwelling house of one Doris Matheny there situate, and then and there actually occupied by one Doris Matheny * * * did break and enter" with the requisite intent. This is a sufficient description to withstand a motion to quash.
The present case is distinguishable from State v. Smith, supra, where an indictment charging the defendant with breaking and entering "a certain building occupied by one Chatham County Board of Education, a Government corporation," was held fatally defective for failure to identify the premises sufficiently. It is a matter of common knowledge that a county board of education occupies more than one building in the county. In the present case, there is nothing to indicate Doris Matheny owned and actually occupied more than one dwelling house in Rutherford County. Prior to the commencement of his trial, the defendant knew that he was charged with burglarizing a dwelling on the same road as his own home and not more than half a mile therefrom. Thus, he had ample information as to the location of the house to enable him to prepare his defense to the charge, which defense was that, at the time of the burglary, he was asleep in his own home.