STATE of North Carolina
v.
Clifford Lee MARTIN and McKinley Gibbs Walker.
No. 68SC232.
Court of Appeals of North Carolina.
August 14, 1968. Certiorari Denied October 29, 1968.*669 Carroll W. Walden, Jr., Forest City, for defendants appellants.
T. W. Bruton, Atty. Gen., by James F. Bullock, Deputy Atty. Gen., for the State appellee.
MORRIS, Judge.
Defendants have set out no exceptions in their assignments of error. Four of their assignments of error are addressed to alleged errors in the court's charge. The charge is not, however, set out in the record. While these are plain and obvious failures to comply and sections (a) and (c) of Rule 19, Rules of Practice in the Court of Appeals of North Carolina, we have considered each assignment of error and find each to be without merit.
Defendants' contention that the allowance in evidence of Mr. Davis' testimony that "my wife, she was hollerin' to the top of her voice, `we have been robbed, we have been robbed'" constituted prejudicial error cannot be sustained. Defendant Martin did not object thereto. No objection was interposed by defendant Walker nor any motion to strike made by him when the same statement was made by Mr. Davis on cross-examination by counsel for defendant *670 Martin. The objection cannot now be raised. State v. Howell, 239 N.C. 78, 79 S.E.2d 235.
Assignments of error Nos. 4 and 5 are addressed to the court's charge. Defendants earnestly contend that the court should have read G.S. § 14-54 in it entirety. G.S. § 14-54 provides:
"§ 14-54. Breaking into or entering houses otherwise than burglariously.If any person, with intent to commit a felony or other infamous crime therein, shall break or enter either the dwelling house of another otherwise than by a burglarious breaking; or any storehouse, shop, warehouse, bankinghouse, countinghouse or other building where any merchandise, chattel, money, valuable security or other personal property shall be; or any uninhabited house, he shall be guilty of a felony, and shall be imprisoned in the State's prison or county jail not less than four months nor more than ten years. Where such breaking or entering shall be wrongfully done without intent to commit a felony or other infamous crime, he shall be guilty of a misdemeanor."
Defendants say the court committed reversible error in failing to instruct the jury that they could consider the lesser degree and find defendants guilty of the misdemeanor of wrongfully breaking and entering without intent to commit a felony. They insist that the evidence merely casts a suspicion of their intent to commit a felony and rely on State v. Jones, 264 N.C. 134, 141 S.E.2d 27; and State v. Worthey, 270 N.C. 444, 154 S.E.2d 515. In State v. Jones, supra, the evidence was that the defendants entered the boiler room of a cleaning plant, then broke an inside window between the boiler room and the main building. An employee in the main building heard the noise, accosted them, and they fled. There was no evidence any personal property was disturbed nor no positive testimony as to whether merchandise, chattels, money, valuable securities were in the boiler room or the main building. In State v. Worthey, supra, the evidence was that at a time when only the watchman and manager were on the premises of Swift & Company plant, an employee noticed that the screens were torn off two windows of one of the buildings. The building was used as a washroom and locker room for employees when the plant was in operation. It housed a table, lockers, showers, sink and toilet facilities. The employee went to a window, heard someone inside and called the police. Upon the demand of the police, defendant came out. He insisted he had gone in to meet an employee named "Robert" who was to give him a ride and had used the toilet facilities while in the building. There was evidence that no Swift employee was named "Robert". In both cases, the Court held that the trial judge should have charged on the lesser degree because "The evidence as to defendant's intent was circumstantial and did not point unerringly to an intent to commit a felony; the jury might have found defendant guilty of a misdemeanor upon the evidence." State v. Worthey, supra, at 446, 154 S.E.2d at 516.
"The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Jones, supra, 264 N.C. at 136, 137, 141 S.E.2d at 29.
We think here the evidence points unerringly to an intent to commit a felony and differentiates this case from State v. Jones, supra, and State v. Worthey, supra. The evidence leaves no doubt but that defendants were interrupted in their mission, and the fact that they were unsuccessful does not entitle them to a charge on the lesser degree of the crime charged.
We have carefully considered the entire charge of the court. There is no merit in defendants' contention that the court placed most of the emphasis on the *671 contentions, evidence, and law arising thereon in favor of the State and thereby expressed an opinion in violation of G.S. § 1-180. Defendants put on very little evidence. Naturally the recapitulation of the evidence by the court would require more time as to the State's evidence than the defendants'. Although defendants complain of no particular portion of the charge, we find that the court fairly and accurately stated the contentions and evidence of both parties.
The remainder of defendants' assignments of error are not brought forward in their brief, and are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.
In the defendants' trial we find
No error.
CAMPBELL and BRITT, JJ., concur.