State v. Hammond

Court of Appeals of North Carolina

State v. Hammond

209 S.E.2d 381, 23 N.C. App. 544, 1974 N.C. App. LEXIS 2148

CourtCourt of Appeals of North Carolina

DecidedNovember 6, 1974

DocketNo. 7426SC579

StatusPublished

Cited by2 cases

This text of 209 S.E.2d 381 (State v. Hammond) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hammond, 209 S.E.2d 381, 23 N.C. App. 544, 1974 N.C. App. LEXIS 2148 (N.C. Ct. App. 1974).

Pincite

Opinion

PARKER, Judge.

Appellant makes two assignments of error, both of which relate to- additional instructions which the court . gave to the jury after it had commenced its deliberations.

The State’s evidence showed that the place illegally entered was the cooler in the building of Southeastern Poultry of North Carolina, Inc., which contained approximately 1200 cases of chickens. In giving additional instructions which the.. jury' requested on the elements of felonious and non-felonious breaking or entering, the judge correctly instructed the jury that one of the elements which the State must prove was that 'it -was a building or storehouse which was broken into or entered. In giving this instruction the judge inserted, parenthetically, the statement that “[t]he Court instructs you that the cooler-would be a storehouse.” Defendant does not except to the quoted statement as such, but does contend that the judge violated G.S. 1-180 in seeming to express the opinion that the cooler in' thi-s case had in fact been broken into or entered. While a strained reading of the charge might grammatically support the' construction which defendant now seeks to place upon it, this Court is not bound by the punctuation employed by the court repórter, and we find no reasonable possibility that the jury could háve been misled into believing that the judge was expressing any opinion as to whether- the evidence had established'that the cooler had in fact been broken into or entered. Rather, we think the jury must have understood the quoted instruction to [546]*546have the meaning which the judge obviously intended, i.e., that as a matter of law the cooler in question was such a structure as is referred to in G.S. 14-54. So understood, the instruction was correct and the judge did not violate G.S. 1-180.

The second assignment of error is that the judge, in giving the additional instruction, failed to repeat that if the jury had a reasonable doubt they should return a verdict of not guilty of non-felonious breaking or entering. However, the judge had given such an instruction fully and clearly in the main portion of his charge, and it was not necessary that he repeat this as part of the additional instructions given to the jury.

In the trial and the judgment entered we find

No error.

Chief Judge Brock and Judge Martin concur.

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PARKER, Judge.

Appellant makes two assignments of error, both of which relate to- additional instructions which the court . gave to the jury after it had commenced its deliberations.

The State’s evidence showed that the place illegally entered was the cooler in the building of Southeastern Poultry of North Carolina, Inc., which contained approximately 1200 cases of chickens. In giving additional instructions which the.. jury' requested on the elements of felonious and non-felonious breaking or entering, the judge correctly instructed the jury that one of the elements which the State must prove was that 'it -was a building or storehouse which was broken into or entered. In giving this instruction the judge inserted, parenthetically, the statement that “[t]he Court instructs you that the cooler-would be a storehouse.” Defendant does not except to the quoted statement as such, but does contend that the judge violated G.S. 1-180 in seeming to express the opinion that the cooler in' thi-s case had in fact been broken into or entered. While a strained reading of the charge might grammatically support the' construction which defendant now seeks to place upon it, this Court is not bound by the punctuation employed by the court repórter, and we find no reasonable possibility that the jury could háve been misled into believing that the judge was expressing any opinion as to whether- the evidence had established'that the cooler had in fact been broken into or entered. Rather, we think the jury must have understood the quoted instruction to [546]*546have the meaning which the judge obviously intended, i.e., that as a matter of law the cooler in question was such a structure as is referred to in G.S. 14-54. So understood, the instruction was correct and the judge did not violate G.S. 1-180.

The second assignment of error is that the judge, in giving the additional instruction, failed to repeat that if the jury had a reasonable doubt they should return a verdict of not guilty of non-felonious breaking or entering. However, the judge had given such an instruction fully and clearly in the main portion of his charge, and it was not necessary that he repeat this as part of the additional instructions given to the jury.

In the trial and the judgment entered we find

No error.

Chief Judge Brock and Judge Martin concur.

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209 S.E.2d 381, 23 N.C. App. 544, 1974 N.C. App. LEXIS 2148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hammond-ncctapp-1974.

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