State v. McIlwain

HEDRICK, Judge.

Defendant contends the trial court erred in admitting into evidence a written confession signed by defendant “ [s] ince there was no finding of fact by the trial judge . . . that the defendant waived his right to counsel. . . .”

The trial court conducted a voir dire examination to determine the admissibility of the confession. Defendant’s testimony on voir dire controverted testimony of Sheriff Fowler and Deputy Sheriff Coffey. Thereafter, the trial court made findings that defendant “was properly warned of his constitutional rights as required by the Miranda decision” and that “the defendant signed State’s Exhibit 1, Entitled ‘Waiver of Rights,’ before witnesses, Rufus H. Coffey and John Mayberry; that the defend*233ant has testified by believable evidence that he signed the waiver; that he knew what he was signing at that time. . . The court further found as a fact that defendant freely, understandingly and voluntarily made the confession after having been fully advised of his legal and constitutional rights.

The conflicting testimony adduced at the voir dire presented a question of credibility of the witnesses which was for the determination of the trial judge. His findings of fact, supported by competent evidence, are conclusive on appeal. State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971); State v. McRae, 276 N.C. 308, 172 S.E. 2d 37 (1970).

Defendant contends that the tidal court commented on the evidence in violation of the mandate of G.S. 1-180, when the court, in charging the jury, restated defendant’s contention (as contained in his confession) that during the perpetration of the housebreaking and larceny, defendant was the watchman and did not break into and remove goods from the Deal residence. Immediately thereafter, the court instructed the jury that defendant denied being at the scene of the crime and claimed that his confession was made under duress.

Considered contextually, the portion of the charge upon which this assignment of error is based is free from prejudicial error.

Defendant contends the trial court erred in its charge by failing to instruct the jury “in its discussion of aiding and abetting that the breaking and entering must be with intent to commit larceny.”

In various portions of the charge before and after the instruction upon which this assignment of error is based, the court correctly instructed the jury as to all of the essential elements of the offense of felonious breaking or entering. This assignment of error is overruled.

Defendant contends the trial court erred in instructing the jury that the crimes of felonious breaking or entering and felonious larceny were so interrelated that if the jury found defendant not guilty of felonious breaking or entering it must also find him not guilty of felonious larceny.

We do not agree. The trial court correctly defined each element of the separate offenses charged in the bill of indictment *234and correctly instructed the jury to return a verdict of not guilty of either offense if the State failed to prove beyond a reasonable doubt the essential elements of each offense;

Finally, defendant requests this court to review the record in the two cases in which defendant pleaded guilty to the indictments charging felonious larceny of goods from the Harris Teeter Super Markets, Inc., and Eckerds Drug Store.

The record affirmatively shows that defendant, represented by court-appointed counsel, freely, understandingly and voluntarily entered pleas of guilty to separate bills of indictment, proper in form, charging him with felonious larceny of goods valued in excess of $200.00, from the Harris Teeter Super Markets, . Inc., and Eckerds Drug Store. The prison sentences imposed are within the limits prescribed by statute for the offenses charged.

The result is: in the case charging defendant with breaking or entering and larceny, we find no error; in the cases charging felonious larceny, the judgments are affirmed.

Affirmed.

Judges Campbell and Parker concur.