#### STATE v. ELLSWORTH.

(Filed May 20, 1902.)

1. INDICTMENT — Sufficiency—Burglary—The Code, Sec. 996.

An indictment for burglary, alleging a breaking with intent unlawfully, wilfully and feloniously to commit tbe crime of larceny, sufficiently charges an intent.

2. EVIDENCE — Withdrawal hy Trial Judge — Harmless Error.

The trial judge may correct tbe admission of improper evidence by withdrawing it from tbe jury.

2. EVIDENCE — Burglary.

Evidence in a burglary case that witness met defendants the day before the former heard of tbe safe being broken open, is admissible as fixing the time of tbe occurrence as to which witness was testifying.

4. EVIDENCE — Opinion Evidence — Burglary.

Evidence in a burglary case that from the appearance of the door the witness thought it had been broken open by a chisel is competent.

INDICTMENT against George Ellsworth and J. H. Traynor, heard by Judge Walter E. Neal and a jury, at September Term, 1901, of tbe Superior Court of Anson County. E’rom a verdict of guilty as to both defendants and judgment thereon, they appealed.

Robert D. Gilmer, Attorney-General, for the State.

H. E. McLendon, for tbe defendants.

*691Clark, J.

Tbe defendants were indicted under Section 996 of Tbe Code in tbe following bill of indictment: “* * * That tbe defendants did unlawfully, wilfully and feloniously break and enter tbe store-bouse of M. H. Lowery and others, doing business as M. IT. Lowery & Co., tben and there situate, and in which said bouse there was at tbe time money, meal, flour, meat, dry goods and other personal property, in tbe night time, and with intent, unlawfully, wilfully and feloni-ously to commit tbe crime of larceny,” etc. Tbe defendants moved to quash, and also in arrest of judgment, because tbe intent “to commit tbe crime of larceny” was- not sufficiently charged. The Solicitor followed a decision of this Court which is exactly in point, and tbe Judge properly denied the motion. State v. Tytus, 98 N. C., 705. This case has since been cited with approval in State v. Christmas, 101 N. C., 755.

A witness testified that the defendants left a horse there tied to a tree and did not come back, and tbe next day tbe owner of tbe horse came for him. The defendants excepted, because this tended to show another substantive crime, but it was not used for that purpose, and was simply a circumstance which incidentally came out in narrating the conduct of the defendants and connecting them with the crime. However, the Court, out of abundant caution, subsequently withdrew this evidence from the jury and told them not to consider it. This cured the error, if any. Wilson v. Mfg. Co., 120 N. C., 94, and numerous cases there cited; also Crenshaw v. Johnson, Ibid., 277; State v. Apple, 121 N. C., 584; Waters v. Waters, 125 N. C., 591, and other recent cases. Another witness testified that the day he met the defendants was the day before he heard about the safe being broken open. This was not evidence to show that the safe had been blown open, which was amply shown by direct and uncontradicted *692testimony, but was evidence of tbe witness to' fix tbe time of tbe occurrence to .which be was. testifying.

Nor was there any sound objection to the testimony, “Tbe front door bad been broken open witb a chisel.-” This was not a matter of opinion, but the witness was testifying to tbe impression made on tbe wood by the chisel, and be was subject to cross-examination; nor was it a very material point whether the door was broken open by a chisel or other instrument. It was as competent for the witness to say that tbe impression on the door-facing was made by a chisel as to say that a track was made by a man or a horse. There was no conflicting evidence that the room bad been broken into and tbe safe drilled into and broken open by some explosive, and gold coin and other contents abstracted. Those matters were not contested. The point in tbe case was to show beyond a reasonable doubt that the defendants- were tbe perpetrators of the crime.

The above points are all that are presented in the brief of the learned and able counsel of the defendants.

There are other exceptions in the record, but, on careful examination, they do not require discussion.

No Error.