Appeal by defendant from Battle, Judge. Judgment entered 1 February 1979 in Superior Court, Durham County. Heard in the Court of Appeals 30 August 1979.
Martin (Robert M.), Judge. Judges Webb and Erwin concur.
Defendant first assigns as error the failure of the trial court to declare a mistrial after learning that the bailiff had engaged in conversation with one of the jurors during the trial of this matter. The trial court held a voir dire hearing and determined that
nothing whatsoever in the conversation was even remotely related to the instant case or any other current case on the trial calendar for Durham County. The only reference to a case made by the bailiff was to one on which he sat as a juror twenty-five years earlier, and in which he, the bailiff, felt he had been instrumental in bringing about an acquittal of the defendant in that matter. If any impact could have been made upon the juror by the bailiff, it would necessarily have been favorable to the defendant. Under these facts, it was not error for the trial court to overrule defendant's motion for a mistrial. Mistrials are not granted lightly, and the granting thereof will ordinarily rest in the sound discretion of the trial judge. See State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977). Defendant has failed to show any abuse of discretion and the cases dealing with this issue do not support his contentions. See e.g., State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Clemmons, 35 N.C. App. 192, 241 S.E.2d 116 (1978). Although we do not countenance with approval any unauthorized conversation between court officials and jurors, we do not find it necessary to order the expense and inconvenience of a new trial where the content of the conversation was as innocuous and nonprejudicial to defendant as the record before us indicates. See, e.g., Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278 (1915). Defendant's assignment of error is overruled.
We also overrule defendant's assignment of error to the trial court's failure to question the jurors in regard to this conversation. All of the evidence concerning the conversation showed that the conversation was decidedly nonprejudicial in character, and we do not see what purpose would have been achieved by extending the inquiry further. We note that the trial court properly instructed the jury as to what evidence they could and should consider, and conclude that any error here would be harmless.
Defendant next assigns as error the failure of the trial court to allow his motion for nonsuit at the close of State's evidence. We find this assignment of error to be wholly without merit. On a motion for nonsuit, the evidence for the State is to be viewed by the trial court as true, with any conflicts or discrepancies in the evidence being resolved, for the purposes of the motion, in favor of the State. See State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975). Evidence for the State tended to show that a deputy of the Durham County Sheriff's Department (having gone with another
deputy to the store which had been broken and entered in response to a silent burglar alarm) saw two black males emerge from the rear of the building in question. When they did not stop at his verbal command, he fired his shotgun, at which point both individuals dropped to the ground. One of the individuals (later identified as defendant) had entered some bushes and was, for a short period of time, out of the deputy's view, but he emerged from the bushes on the deputy's command. In close physical proximity to the individuals, the deputy found several bottles of prescription drugs, two pairs of gloves, as well as a crowbar at the rear of the building. A tire tool was found inside the building at its rear. The owners of the store and other store employees testified that defendant and his companion had not been given permission to be in the store. We find this evidence to be abundantly sufficient to survive defendant's motion for nonsuit. See State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). The assignment of error is overruled.
Defendant further assigns as error the trial court's submission to the jury of the issue regarding possession of implements of housebreaking, an offense under N.C. Gen. Stats. § 14-55. State's evidence, as noted above, tended to show that both a tire tool and a crowbar were found in close proximity to defendant and his partner at the scene of the offense. Defendant contends, on the authority of State v. Garrett, 263 N.C. 773, 140 S.E.2d 315 (1965) and State v. Godwin, 3 N.C. App. 55, 164 S.E.2d 86 (1968) (Godwin following the rationale and holding of Garrett), that it was error for the trial court to permit the jury to consider whether a tire tool could be an implement of house- (or store-) breaking.
The decided cases display a less than uniform degree of consistency in approach to the question what is or is not an "other implement of housebreaking" within the purview of N.C. Gen. Stats. § 14-55. The decisions, at least on first consideration, would appear to be oriented towards reaching particular results in particular cases, rather than in refining and applying a uniform rule of law. See generally Annot. 33 A.L.R. 3rd 798. It is by this ad hoc procedure that we came to the result whereby a crowbar, which is a tool well-suited for prying and forcing, is susceptible to adjudication as being an implement of housebreaking as a matter of law (even though many crafts and trades legitimately employ
this tool for lawful purposes) (see, e.g., State v. Morgan, 268 N.C. 214, 150 S.E.2d 377 (1966)) and yet a tire tool, which is equally well-suited for prying and forcing (a conclusion which we may safely reach by observing the frequency with which both implements figure prominently in breaking cases), is ...