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North Carolina v. Hall

Filed: June 1, 1982.

STATE OF NORTH CAROLINA
v.
JEFFUS H. HALL



Appeal by defendant from Braswell, Judge. Judgment entered 9 June 1981 in Superior Court, Cumberland County. Heard in the Court of Appeals 9 March 1982.

Webb, Judge. Judges Clark and Arnold concur.

Webb

The defendant's first assignment of error is to the court's acceptance of a verdict of guilty to felonious larceny. The State agrees with the defendant that this assignment of error has merit. In this case the court in its charge did not instruct the jury to fix the value of the property but told them to find the defendant guilty of felonious larceny if they were satisfied beyond a reasonable doubt that the property was taken during the burglary or after a breaking or entering. The defendant was found not guilty of the burglary and breaking or entering. The jury could not find him guilty of felonious larceny under these circumstances and the court should have treated the verdict as a finding of guilty of misdemeanor larceny. See State v. Cornell, 51 N.C. App. 108, 275 S.E.2d 857 (1981) and State v. Keeter, 35 N.C. App. 574, 241 S.E.2d 708 (1978).

In his second assignment of error the defendant contends it was error not to let him make the closing argument to the jury. He contends he did not put on evidence. If the defendant put on evidence, it was through the offering of a sweatsuit as an exhibit while cross-examining a State's witness. Michael Gerard testified for the State. On cross-examination he said he saw the defendant in the yard of the person whose house was entered at the time of the breaking and entering. Mr. Gerard testified the defendant was wearing an orange sweatsuit. The following colloquy then occurred:

"Q. I believe you testified that the sweatsuit was orange on the top and bottom?

A. Right.

Q. And it had a black stripe down the sleeve?

A. No, I said it might have, I can't remember.

Q. Your memory is that it was a fully an orange sweatsuit?

A. It was a bright color, probably an orange, right.

Q. I hand you two pieces --

Court: One moment, sir. Have them marked for ...


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