State v. Mayfield

Court of Appeals of North Carolina

State v. Mayfield

329 S.E.2d 419, 74 N.C. App. 601, 1985 N.C. App. LEXIS 3516

CourtCourt of Appeals of North Carolina

DecidedMay 7, 1985

DocketNo. 8426SC694

StatusPublished

This text of 329 S.E.2d 419 (State v. Mayfield) 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. Mayfield, 329 S.E.2d 419, 74 N.C. App. 601, 1985 N.C. App. LEXIS 3516 (N.C. Ct. App. 1985).

Pincite

Opinion

PHILLIPS, Judge.

Both of defendant’s assignments of error relate to the trial court’s instructions to the jury. The first error assigned is the court’s failure to instruct the jury on the lesser included offense of felonious breaking and entering when charging on the first degree burglary indictment. While felonious breaking or entering, which is the breaking or entering of any building with intent to commit any felony or larceny therein, G.S. 14-54(a), is a lesser included offense of first degree burglary, which is the breaking and entering of an occupied dwelling or sleeping apartment during the nighttime with the intent to commit a felony therein, the court was not required to charge on it, in our opinion. The trial judge is not required to submit an issue to the jury that the evidence does not raise. See, State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). The State’s evidence, all that the jury had to go on since the defendant presented none, tended to show only that defendant forcibly entered the apartment by breaking through a screened window; it did not tend to show, as defendant contends, that defendant entered the apartment without force through an open, [603]*603unscreened window. Since the evidence tended to show only a burglarious breaking and entry that was the only kind of entry that the court was required to charge on.

Defendant’s other assignment, that the court erred in instructing the jury with regard to the identification testimony, is likewise without merit. The instruction given followed that approved in State v. Martin, 53 N.C. App. 297, 280 S.E. 2d 775 (1981) almost verbatim. There is no exact form in this state for instructing on the identification of one charged with crime. State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981). When a defendant’s identity is questioned all that is required is that the court emphasize that proving the defendant’s identity as the perpetrator of the crime is an essential element of the case, which the State must prove beyond a reasonable doubt. State v. Green, 305 N.C. 463, 290 S.E. 2d 625 (1982). This the court did.

No error.

Judges Webb and Martin concur.

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PHILLIPS, Judge.

Both of defendant’s assignments of error relate to the trial court’s instructions to the jury. The first error assigned is the court’s failure to instruct the jury on the lesser included offense of felonious breaking and entering when charging on the first degree burglary indictment. While felonious breaking or entering, which is the breaking or entering of any building with intent to commit any felony or larceny therein, G.S. 14-54(a), is a lesser included offense of first degree burglary, which is the breaking and entering of an occupied dwelling or sleeping apartment during the nighttime with the intent to commit a felony therein, the court was not required to charge on it, in our opinion. The trial judge is not required to submit an issue to the jury that the evidence does not raise. See, State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). The State’s evidence, all that the jury had to go on since the defendant presented none, tended to show only that defendant forcibly entered the apartment by breaking through a screened window; it did not tend to show, as defendant contends, that defendant entered the apartment without force through an open, [603]*603unscreened window. Since the evidence tended to show only a burglarious breaking and entry that was the only kind of entry that the court was required to charge on.

Defendant’s other assignment, that the court erred in instructing the jury with regard to the identification testimony, is likewise without merit. The instruction given followed that approved in State v. Martin, 53 N.C. App. 297, 280 S.E. 2d 775 (1981) almost verbatim. There is no exact form in this state for instructing on the identification of one charged with crime. State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981). When a defendant’s identity is questioned all that is required is that the court emphasize that proving the defendant’s identity as the perpetrator of the crime is an essential element of the case, which the State must prove beyond a reasonable doubt. State v. Green, 305 N.C. 463, 290 S.E. 2d 625 (1982). This the court did.

No error.

Judges Webb and Martin concur.

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Bluebook (online)

329 S.E.2d 419, 74 N.C. App. 601, 1985 N.C. App. LEXIS 3516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mayfield-ncctapp-1985.

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