State v. Smith , 266 N.C. 747 ( 1966 )

147 S.E.2d 165 (1966) 266 N.C. 747

STATE
v.
John Edward SMITH.

No. 248.

Supreme Court of North Carolina.

March 23, 1966.

Atty. Gen. T. W. Bruton and Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Don Davis, Charlotte, for defendant appellant.

PER CURIAM.

The State's evidence, in brief summary, tends to show that defendant on June 3, 1965, at night, broke and entered the building of Carolina Ruling & Binding Company, Charlotte, N. C., which consisted of offices, an area where employees operated the equipment, and warehouse space; that defendant came upon, shoved and knocked down Griggs, age 75, a night watchman; and that defendant seized and appropriated to his own use Griggs' pistol, fired a shot in the floor in close proximity to Griggs and fired another shot while he was making his way out of the building. Defendant's testimony tends to show he was in Plainsville, New Jersey, not in Charlotte, North Carolina, in June 1965.

There was ample evidence to support the verdict of guilty of felonious breaking and entering as charged in the first count of No. 45-104. Since the accomplished larceny relates solely to a pistol valued at $25.00, defendant contends there is no evidence he broke or entered with the intent to commit a felony. The contention is without merit.

Under G.S. § 14-54, if a person breaks or enters one of the buildings described therein with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent or whether, if successful, the goods he succeeds in stealing have a value in excess of $200.00. In short, his criminal conduct is not determinable on the basis of the success of his felonious venture.

The doctrine of State v. Andrews, 246 N.C. 561, 99 S.E.2d 745, cited by defendant, has no application unless it appears affirmatively from the indictment and evidence that the breaking or entering was with intent to steal specific identifiable property of the value of $200.00 or less and no other property.

Defendant contends the second count of No. 45-104 should have been dismissed for fatal variance between the indictment and the proof. In the indictment, the ownership of the pistol is laid in Griggs. The evidence is that the daughter of Griggs is the owner of the pistol and that the pistol when stolen was in the custody and under the control of Griggs. The special interest of Griggs as bailee was sufficient to obviate a fatal variance. State v. Law, 228 N.C. 443, 45 S.E.2d 374; State v. MacRae, 111 N.C. 665, 666, 16 S.E. 173; State v. Powell, 103 N.C. 424, 432, 9 S.E. 627, 4 L.R.A. 291; State v. Allen, 103 N.C. 433, 9 S.E. 626, and cases cited.

Defendant's assignments do not purport to point out any specific error relating to his conviction of assault with a deadly weapon under the indictment in No. 45-103. Nor do we perceive error in defendant's conviction on said indictment.

The crime charged in the second count was the (simple) larceny of property of the value of $200.00 or less, a misdemeanor for which the maximum sentence is two years. See State v. Fowler, N.C., 147 S.E.2d 36. However, no separate sentence based on defendant's conviction of larceny as charged in the second count of No. 45-104 was pronounced. Defendant's conviction of felonious breaking and entering as charged in the first count of No. 45-104 fully supports the judgment in No. 45-104 imposing a prison sentence of not less than seven nor more than nine years. It is noted that the sentence imposed by judgment pronounced in No. 45-103 is "to be served concurrently" with the sentence in No. 45-104.

No error.

MOORE, J., not sitting.