State v. Hill, 237 N.C. 764 (1953)

May 20, 1953 · Supreme Court of North Carolina

237 N.C. 764

STATE v. PAUL ELMER HILL.

(Filed 20 May, 1953.)

1. Criminal Law § 79—

Exceptions not set out in the brief, or which are set out in the brief but are supported by no reason or argument, will be taken as abandoned. Rule of Practice in the Supreme" Court No. 28.

2. Criminal Law § 81c (2) —

Where, in a single instance in stating the State’s contentions, the court charges that “the court says and contends . . .” but the lapsus linguae is immediately brought to the court’s attention and corrected by the court, the inadvertence will not be held for prejudicial error.

3. Receiving Stolen Goods § 8—

In a prosecution for feloniously receiving stolen goods, the jury is not required to fix the value of the goods in its verdict. G.S. 14-71.

Appeal by defendant from McLean, Special Judge, November Term, 1952, of DavidsoN.

This is a criminal prosecution upon an indictment charging the defendant with larceny and receiving.

Tbe State offered evidence to the effect that Otis Lindsey Michael and Guy Stanley Jordan stole eight rolls of copper wire from Davidson Electric Membership Corporation about 15 August, 1952, and hid it in the bushes in Hotchkiss Bottom on the backwaters of High Rock Lake; that each roll weighed approximately 200 pounds; that the wire stolen ranged in price from $34.18 to $37.00 per hundred pounds; that the defendant Hill did not participate in the theft of the wire but assisted in chopping it up and in burning off the insulation in an effort to make it difficult to identify; and that the defendant Hill carried the chopped up wire in his car to Salisbury, N. C., and sold it to a junk dealer.

Sam Swartz, the junk dealer, testified that he bought 238% pounds of copper wire from the defendant Hill on 26 August, 1952, and paid him 17c a pound for it; that the wire looked like it had been chopped into small pieces and had been burned; that he later purchased 338 pounds of wire from the defendant in the same condition and for which he paid him 18c a pound; that when Hill sold this wire to him, he said his name was Otis Lindsey.

The jury returned a verdict of “guilty of receiving as charged in the bill of indictment,” and from the judgment pronounced thereon the defendant appealed, assigning error.

Attorney-General McMullan, Assistant Attorney-General Bruton, and Gerald F. White, Member of Staff, for the State.

Phillips & Bower for defendant, appellant.

DeNNY, J.

Tbe defendant does not bring forward tbe assignment of error based on bis exception to tbe failure of tbe court below to sustain bis motion for judgment as of nonsuit. In fact, in bis brief, be brings forward and discusses only two of bis six assignments of error.

Exceptions in tbe record not set out in tbe appellant’s brief, or wben set out therein, if no reason or argument is stated, or authorities cited in support thereof, will be taken as abandoned. Rule 28, Rules of Practice in tbe Supreme Court, 221 N.C. 544.

Tbe defendant assigns as error tbe following portion of bis Honor’s charge: “So tbe Court says and contends that your verdict upon this evidence should be that of guilty as charged in tbe bill of indictment.”

According to tbe record, while bis Honor was giving a summation of tbe State’s contentions and was repeatedly beginning sentences with tbe prefaced clause, “Tbe State contends,” in one sentence by a slip of tbe tongue be inadvertently said, “So the Court says and contends . . .” Tbe Solicitor called tbe inadvertence to bis Honor’s attention and be immediately corrected it; and we perceive no prejudicial barm as having come to tbe defendant injhis respect. S. v. Rogers, 216 N.C. 731, 6 S.E. 2d 499; S. v. Brooks, 225 N.C. 662, 36 S.E. 2d 238; S. v. Deaton, 226 N.C. 348, 38 S.E. 2d 81.

The defendant in bis fifth assignment of error, contends that tbe jury in its verdict, should have fixed tbe value of tbe stolen property.

Tbe indictment is under G.S. 14-71, and not under G.S. 14-72. It is provided in tbe latter statute that if tbe value of tbe stolen property be in doubt tbe “jury shall, in tbe verdict, fix tbe value of tbe property stolen.” Here tbe indictment charged tbe defendant with knowingly and feloniously receiving stolen goods of the value of $210.05. And tbe verdict of “guilty as charged in tbe bill of indictment” necessarily included a finding beyond a reasonable doubt that tbe defendant knowingly and feloniously received tbe stolen goods as charged in tbe bill of indictment. Tbe verdict is amply supported by tbe evidence. In fact, according to tbe evidence, tbe value of tbe wire received by tbe defendant before it was cut up and burned, was worth substantially more than tbe value set out in tbe bill of indictment. Tbe evidence further tends to show that tbe defendant helped to destroy tbe value of tbe wire. And after it was cut up and tbe insulation burned off, be received more than $100.00 for it as junk.

In any event, in a prosecution under G.S. 14-71, tbe jury is not required to fix thbe value of the stolen goods in its verdict. S. v. Morrison, 207 N.C. 804, 178 S.E. 562. This assignment of error is without merit.

We find no prejudicial error in tbe trial below, and tbe judgment will • be upheld.

No error.