#### STATE v. DANIEL LONNIE BRITT.

(Filed 28 April, 1965.)

Appeal by defendant from Shaw, J., December, 1964 Session, RowaN Superior Court.

This criminal prosecution was based on a two-count bill of indictment charging that on May 26, 1964, the defendant feloniously broke and entered a certain building occupied by Paul Yates for the purpose of committing the crime of larceny. The second count charged the larceny of two pistols and Ten Dollars in United States currency, of the total value of One Hundred Dollars.

The evidence disclosed the building was broken into and the pistols and the money were taken from the cash register on the night of May 26, 1964. The defendant was at the building at closing time, around ten o’clock at night. He admitted to Mr. Richardson, SBI Agent, that he had gone into the building, taken some money and the pistols which he had pawned in Charlotte for $10.00. He gave the agent the address of the pawn shop where the pistols were recovered.

The defendant testified, denying that he took the pistols or the money from the cash register. He claimed he was drinking and “I was a quarter of a mile away . . . when I realized I had the pistols . . . Both of them were in one pocket. I took them on home . . . and the next morning I went to Charlotte and pawned them ... I do not know how they got in my pocket.”

The jury returned a verdict of guilty. From a prison sentence of two and one-half to five years, the defendant appealed.

T.. W. Bruton, Attorney General, Ralph Moody, Deputy Attorney General for the State.

Graham, M. Carlton for defendant appellant.

PeR Cueiam.

Defendant’s counsel took a number of exceptions to the charge. However, in view of the defendant’s own evidence, the charge is more favorable to him than he had any right to expect. He admitted taking the pistols to a Charlotte loan office. His denial was that he didn’t steal them from the cash register. A new trial, under the circumstances, is not warranted.

No error.