#### STATE v. JOE WILLOUGHBY.

(Filed 15 September, 1920.)

1. Instructions — Admissions—Issues—Statutes—Criminal Law.

Wliere tlie only fact at issue is whether the defendant was the one who had broken into and robbed a store, objection that the charge did not “state in a plain and correct manner the evidence given in the ease, and explain the law arising thereon.” Rev., 535, is untenable, as the whole controversy is reduced to the determination of one fact.

2. Appeal and Error — Objections and Exceptions — Instructions—Omissions — Special Requests.

Exception that the court did not charge the jury in a particular way or omit to give a special instruction on the evidence must be the refusal to give a proper prayer therefor.

3. Instructions — Admissions—Circumstantial Evidence — Criminal Law.

The instructions in this case, where .the breaking into and robbing a store is admitted, and the identity of the defendant is the only question, are held unobjectionable as charging an admission of defendant’s guilt, and upon the law of circumstantial evidence.

4. Criminal Law — Evidence—Declarations—Admissions.

The prosecuting witness may give a list of all the goods lost from the store which the defendant is being tried for breaking into and robbing, so that they may be traced by the State; and the declaration of a witness as to the identity of one of them, made in defendant’s presence and not denied by him, is competent as his quasi admission.

Appeal by defendant from Qrcmmer, •/., at tbe March Term, 1920, of PasquotaNk.

Tbe defendant was convicted upon an indictment containing two-counts, one charging tbe breaking and entering a certain store with intent to steal, and tbe other charging tbe stealing of certain goods from said store, and appealed from tbe judgment pronounced on tbe verdict.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Aydlett & Simpson for defendant.

*677AixeN, J.

On tbe trial in tbe Superior Court it was “conceded and admitted tbat tbe store bad been broken into and robbed, and tbat tbe only question for tbe jury to decide was wbetber it bad been proven beyond a reasonable doubt tbat tbe defendant was tbe guilty party.”

Tbis is tbe statement in tbe record, and it answers tbe criticisms of tbe charge, wbicb are mainly directed to tbe failure to “state in a plain and correct manner tbe evidence given in tbe case, and declare and explain tbe law arising tbereon,” as required by statute, Kev., 535, as it reduced tbe whole controversy to tbe determination of one fact, freed from tbe consideration of any legal question. .

It also appears there were no requests for special instructions to tbe jury, and “A party cannot ordinarily avail himself of any failure to charge in a particular way, and certainly not of tbe omission to give any special instruction, unless be has called tbe attention of tbe court to tbe matter by a proper prayer for instructions. So if a party would have tbe evidence recapitulated, or any phase of tbe case arising tbereon, presented in tbe charge, a special instruction should be requested. Boon v. Murphy, 108 N. C., 187.” Simmons v. Davenport, 140 N. C., 411.

Tbis principle is not disturbed by what is said in S. v. Cline, 179 N. C., 704, because two members of tbe Court dissented in tbat case, and two members who concurred in tbe order for a new trial did so on tbe other grounds than those stated in tbe opinion.

Tbe defendant specially complains of tbe following charges to tbe jury;

> “1. There is no contention about tbe 'breaking or tbe larceny, both are admitted, and should give you no concern, as they are eliminated from your consideration. You are to find wbetber tbe defendant committed tbe larceny. It is your duty to ascertain tbe truth from tbe evidence, and in so doing you may consider not only what tbe witness said, but their demeanor on tbe stand.

> “2. Tbe evidence is circumstantial. Tbe court charges you tbat circumstantial evidence is a recognized instrumentality of tbe law in finding truth, and is essential in our .practice, but it should be closely and cautiously scanned, and each fact proving a necessary link in tbe chain of circumstances must point to tbe guilt of tbe defendant. It has been compared to tbe strands of a rope, where no one strand may be sufficient in itself, but all together may be strong enough to prove tbe guilt beyond a reasonable doubt.

> “You must be satisfied beyond a reasonable doubt as to each material fact in tbe chain of circumstances. You are tbe sole judge of tbe evidence.”

*678Tbe first of these charges does not contain the statement that the defendant admitted his guilt., but that the breaking and stealing by some one was admitted, which is the position maintained by the defendant throughout the trial, and the second is correct as a legal proposition.

It may have been well to add that the circumstances found by the jury to exist must exclude every other reasonable conclusion except the guilt of the defendant, but the failure to do so is not reversible error in the absence of a special request to so instruct the jury.

"We have examined the exceptions to evidence, and none of them can be sustained.

It was competent for the prosecuting witness to give an account of all the goods lost from the store in order.that the State might have the opportunity to trace some or all of the articles to the defendant, and the declaration of the witness as to the identity of one of the articles was admissible as a quasi admission of the defendant, because made in his presence, and he made no denial at the time.

It was also in corroboration of the witness.

The exception that the defendant was not allowed to state the wages he was earning, if the evidence was competent, is contradicted by the record, which states that the defendant testified he received $12.50 per week, and it nowhere appears that this was withdrawn from the jury.

The evidence fully sustains the verdict, and we find no error in the trial.

No error.