State v. Bryant

70 S.E.2d 186, 235 N.C. 420, 1952 N.C. LEXIS 411

Opinion

WiNBORN®, J.

I. For error in the trial in Superior Court, appellant stresses in the main his exception to the overruling of his motion for judgment as of nonsuit aptly renewed at the close of all the evidence. G.S. 15-173.

Such a motion made under the provisions of G.S. 15-173, formerly C.S. 4643, serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by G.S. 1-183, formerly C.S. 567, in civil actions. S. v. Fulcher, 184 N.C. 663, 113 S.E. 769. Thus in considering such motion in a criminal prosecution, as in a civil action, the defendant’s evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State’s evidence, it may be used to explain or make clear tbat which has been offered by the State. See Rice v. Lumberton, ante, 227, where the authorities are assembled.

Therefore, taking the evidence offered by the State and so much of defendant’s evidence as is favorable to the State, or tends to explain and make clear that which has been offered by the State, in the light most favorable to the State, this Court is of opinion, and is impelled to hold that there is sufficient evidence to take the case to the jury on the question of the guilt or innocence of defendant on all, or on each of the offenses with which he stands charged.

"While some of the evidence offered by the State might have been excluded as hearsay, Bunting v. Salsbury, 221 N.C. 34, 18 S.E. 2d 697, it was admitted without objection, and hence under the rule may be considered with the other evidence and given such evidentiary value as it properly may possess. S. v. Fuqua, 234 N.C. 168, 66 S.E. 2d 667; Maley v. Furniture Co., 214 N.C. 589, 200 S.E. 438. Under another rule of evidence statements made in the presence and hearing of the accused implicating him in the commission of a crime, to which he makes no reply, are competent against him as implied admissions. S. v. Suggs, 89 N.C. 527. S. v. Wilson, 205 N.C. 376, 171 S.E. 338; S. v. Hawkins, 214 N.C. 326, 199 S.E. 284; S. v. Gentry, 228 N.C. 643, 46 S.E. 2d 863; S. v. Sawyer, 230 N.C. 713, 55 S.E. 2d 464; S. v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349.

But when he at the time denies the truth of the statements, this rule does not apply, and the evidence upon objection would be excluded. See Stansbury N. C. Evidence, Sec. 179; also S. v. Herring, 200 N.C. 308, 156 S.E. 538; Hedgecock v. Ins. Co., 212 N.C. 638, 194 S.E. 86; S. v. Peterson, 212 N.C. 758, 194 S.E. 498.

II. Appellant also assigns as error the denial of his motion to set aside the verdict, and the rendition of the judgment as set out in the record. It is urged that the verdict is too indefinite to support the judgment. Probably it would have been better if the jury had spelled out the verdict more specifically. But as the charge in each of the four cases is larceny of chickens, a verdict of guilty in any one of the cases would be guilty of larceny of chickens. And since the court has imposed only one sentence, prejudicial error is not made to appear.

No error.