#### STATE OF NORTH CAROLINA v. DONNIE BRYANT and EARL BRYANT

No. 727SC817

(Filed 20 December 1972)

Criminal Law § 128— motion for mistrial — rebuttal testimony — stolen money given to witness by defendant’s wife

In a prosecution for breaking and entering and larceny, the trial court did not err in the denial of defendants’ motions for mistrial made when a State’s witness testified on rebuttal that one defendant’s wife gave him a silver dollar which was subsequently identified by the victim as being part of the stolen property.

Appeal by defendants from Friday, Judge, 17 July 1972 Session of Superior Court held in Wilson County.

The defendants, Donnie Bryant and Earl Bryant, were charged in separate two count bills of indictment, proper in form, with felonious breaking and entering and felonious larceny from the home of Coleman Farr on Williams Drive in Black Creek. Upon the defendants’ pleas of not gyilty, the State offered evidence tending to show the following:

On 19 February 1972 the home of Coleman Farr was broken into and the following items were removed from that home: a .22 caliber pistol, a .22 caliber rifle, an old coin collection, fifteen silver dollars, a tape recorder, a camera, a satchel, a portable file box, insurance policies, receipts and important papers, checkbooks, a savings account book, a tool box and tools, a circular saw, a jig saw, a soldering gun, a transistor radio and a color television. These items were subsequently found in the possession of Earl Johnson and Bobby Deans who denied stealing the property. They testified that they purchased the property from the defendants who brought it to Bobby Deans’ residence on the night of 19 February 1972. The testimony of these two witnesses was corroborated by the wife of Bobby Deans and by the girl friend of Earl Johnson. Wilson County Deputy Sheriff James Hawley testified that these witnesses related the same story to him. None of the stolen property was ever found in the possession of the defendants.

Defendants testified, denying participation in the crime and attempting to establish an alibi. Defendants also denied ever having any of the stolen property in their possession.

*138Each defendant was found guilty of felonious breaking and entering and felonious larceny. Prayer for judgment was continued as to each defendant on the count charging felonious larceny. From a judgment imposing a prison sentence of eight to ten years, Earl Bryant, and four to seven years, Donnie Bryant, on the count charging felonious breaking and entering, defendants appealed.

Attorney General Robert Morgan and Assistant Attorney General Eugene Hafer for the State.

Ezzell and Henson by Thomas W. Henson for defendant appellants.

HEDRICK, Judge.

The one assignment of error brought forward and argued in defendants’ brief is that the court erred in not allowing defendants’ motions for mistrial made when a State’s witness, on rebuttal, testified that Sandy Bryant, Donnie Bryant’s wife, gave him a silver dollar, subsequently identified by Mr. Farr as being part of the stolen property. This assignment of error has no merit. Defendants have failed to show the court abused its discretion in denying the motion.

The defendants had a fair trial free from prejudicial error.

No error.

Judges Vaughn and Gkaham concur.