State v. Gordon, 12 N.C. App. 38 (1971)

July 14, 1971 · North Carolina Court of Appeals · No. 7117SC406

12 N.C. App. 38

STATE OF NORTH CAROLINA v. ROBERT RAY GORDON

No. 7117SC406

(Filed 14 July 1971)

Appeal by defendant from Seay, Judge, 12 January 1971 Session of Superior Court held in Surry County.

The defendant, Robert Ray Gordon, was charged in a two-count bill of indictment, proper in form, with felonious breaking and entering and felonious larceny.

Upon defendant’s plea of not guilty, the State offered evidence tending to establish the following facts: On 31 May 1970, Dowell Brothers store, located at the intersection of Highway 601 and Forest Drive near the Town of Mount Airy, was broken into and a quantity of cigarettes having a value of $1,400 to $1,500 was taken therefrom. Deputy Sheriff Wallace Creed was traveling south on Highway 601 at 5:45 a.m. on 31 May 1970. As he passed Dowell Brothers store he saw a 1961 Buick parked over on Forest Drive southwest of the store with the trunk open. The Buick was located 60 feet from the store. He saw the defendant, Robert Ray Gordon, standing near the car and immediately stopped his vehicle and started backwards. While he was backing, the defendant slammed the trunk lid closed and went into the woods on the west side of Forest Drive. Deputy Sheriff Creed then looked toward the store and saw a man, later identified as Joe Bill Puckett, coming out of the stockroom door. There were four cases of cigarettes in the door. Puckett ran toward the Buick parked on Forest Drive and ran into the woods previously entered by the defendant, Gordon. Deputy Sheriff Creed got out of his automobile, shouted for them to stop, and fired his gun at them. Shortly thereafter, Deputy Sheriff Creed called in bloodhounds and caught Joe Bill Puckett. Eight cases of cigarettes were found in the trunk of the Buick bearing the Dowell Brothers store stamp. The defendant was taken into custody around noon of 31 May 1970.

The defendant offered no evidence. The record discloses that the jury found the defendant guilty of felonious breaking and entering, a violation of G.S. 14-54. From a judgment entered on the verdict imposing a prison sentence of six to eight years, the defendant appealed.

Attorney General Robert Morgan and Assistant Attorney General Robert G. Webb for the State.

Gardner & Gardner by Carroll F. Gardner for defendant appellant.

HEDRICK, Judge.

By his one assignment of error, the defendant contends that the trial judge violated the provisions of G.S. 1-180 in his charge to the jury by failing to give equal stress to the contentions of the defendant and the State. Although the defendant cross-examined the State’s witnesses, he presented no evidence of his own.

Prom a careful reading of the charge in light of the fact that all of the evidence offered at the trial was presented by the State, it is our opinion that the court did not violate the requirements of G.S. 1-180, but gave adequate stress to the contentions of the defendant and the State. State v. Smith, 238 N.C. 82, 76 S.E. 2d 363 (1953) ; State v. Roman, 235 N.C. 627, 70 S.E. 2d 857 (1952).

In the trial below we find no error.

No error.

Chief Judge Mallard and Judge Campbell concur.