State v. Carter

HEDRICK, Judge.

Defendant first assigns as error the trial court’s denial of her motion for judgment as of nonsuit. “Upon a motion for judgment as of nonsuit, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence.” State v. Cutler, 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967).

The material evidence offered by the State tended to establish the following:

The defendant lived in Gaston County with Mr. and Mrs. Roy Ledford, her sister and her sister’s husband. On 2 July 1971, Roy Ledford and several other persons traveled by truck to Tony’s Mobile Home Sales on Highway 29 West, broke into a mobile home located at this site, and removed a refrigerator, gas range, typewriter, sofa, lamp, and several chairs. After *463completing this act, Ledford and his accomplices returned to Ledford’s home where the defendant helped place the furniture in a room of the house. Roy Ledford and the other members of his party returned to Tony’s Mobile Home Sales for a second load; however, they were apprehended inside a trailer on the mobile home lot. On the next day defendant offered to sell the stolen goods to William Roseberry; however, he refused to purchase the goods but did offer to allow defendant to store these items in his warehouse. Defendant and Glenn Montgomery delivered the goods to the warehouse, and Roseberry gave defendant a receipt for the rental fee of eight dollars ($8.00). On 4 July 1971, defendant again visited Roseberry and borrowed twenty dollars ($20.00) by pledging the goods as security.

This evidence, when viewed in the light most favorable to the State, constitutes the exercise of control over the stolen property and is sufficient to withstand defendant’s motion for judgment as of nonsuit and to support the verdict.

In her three remaining assignments of error the defendant asserts that the trial court erred in its instructions to the jury (1) in commenting on the defendant’s not offering any evidence without explaining in accordance with G.S. 8-54 that no presumption arises from defendant’s failure to testify, (2) in using the term “dishonest purpose” in the charge, and (3) in defining the offense of receiving stolen goods. That portion of the charge upon which the defendant’s first contention is based, in our opinion, does not amount to a comment by the court on defendant’s failure to testify. The court merely stated that the defendant did not offer any evidence and this statement simply served as a preface to the trial judge’s recapitulation of certain evidence brought out by the defendant on cross-examination of the State’s witnesses. Furthermore, assuming arguendo that the comment made by the judge was directed to defendant’s failure to testify, we are of the opinion that this instruction, although meager, meets minimum requirements and that defendant has failed to show any prejudicial error. The second and third challenges to the charge are lifted out of context and when the charge is considered contextually as a whole it is found to be fair and complete and free from prejudicial error.

No error.

Judges Campbell and Baley concur.