State v. Smith

PARKER, Judge.

Appellant contends there was error when the court allowed the State to introduce in evidence as an exhibit the saw which the deputy sheriff testified he recovered from underneath the old abandoned house. Aside from the fact that the record discloses no objection or exception to the admission of this evidence, appellant’s contention is without merit. Prior to admission of this evidence, the saw had been identified by its owner as the property taken from his home when it was broken into, *556and defendant’s own brother had testified as to defendant’s breaking into the home, removing the saw therefrom, and hiding it under the old house. The evidence was clearly admissible,

Appellant assigns as error the overruling of his objections to questions which the solicitor asked the deputy sheriff concerning the foot tracks. In our opinion this testimony was properly admitted in evidence. When this testimony was offered, the State’s witness, Kenneth Lee Smith, had already testified as an eyewitness to defendant’s commission of the crimes with which he was charged and concerning the exact route he and defendant had walked over at the time. The court instructed the jury that the evidence with reference to footprints was offered, not as-substantive evidence, but merely as corroborative evidence. The case of State v. Palmer, 230 N.C. 205, 52 S.E. 2d 908, cited by appellant, is clearly distinguishable on its facts. In that case there was no evidence linking defendants to the scene of the crime other than insufficiently identified footprints and tire tracks.

Appellant assigns as error the judgment imposing sentence of imprisonment of from five to seven years, pointing out that the court in charging the jury on the second count failed to require the jury to find that the larceny was committed by breaking and entering. Appellant contends that, since the property stolen was not more than $200.00 in value, under the court’s charge the jury’s verdict on the second count amounted to a finding of guilt of misdemeanor larceny. Even so, the two counts were consolidated for judgment and the punishment imposed was within the statutory maximum authorized by the jury’s verdict on the first count. “When one judgment is entered after conviction of more than one count in a multiple count bill, the judgment will be sustained if the judgment does not exceed that which is permissible on the count which carries the greater or greatest punishment.” State v. Raynes, 272 N.C. 488, 490, 158 S.E. 2d 351, 353; State v. Smith, 266 N.C. 747, 147 S.E. 2d 165; State v. White, 2 N.C. App. 398, 163 S.E. 2d 82.

Appellant has made a number of other assignments of error, all of which we have carefully examined and in none of which we find prejudicial error.

No error.

Chief Judge Mallard and Judge Hedrick concur.