State v. Kelly , 39 N.C. App. 246 ( 1978 )

249 S.E.2d 832 (1978) 39 N.C. App. 246

STATE of North Carolina
v.
Arthur KELLY.

No. 7829SC723.

Court of Appeals of North Carolina.

December 19, 1978.

Atty. Gen., Rufus L. Edmisten, by Associate Atty. Gen., Christopher S. Crosby, Raleigh, for the State.

I. C. Crawford, Ashefield, for defendant appellant.

HARRY C. MARTIN, Judge.

Defendant objects to the consolidation of the charges for trial. The indictments charge the defendant with felonious possession on 2 December 1977 of stolen property. The indictments alleged, and the evidence indicated, the property was stolen at different times but all possessed by defendant on 2 December 1977. The solicitor could have included both charges in one bill of indictment. There was no error in the consolidation in the discretion of the trial judge.

Defendant contends the court erred in allowing State's witness to testify he found defendant "hiding in the bushes." We disagree. The use of the word "hiding" was a shorthand statement of fact supported by another witness's description of where defendant was found. 1 Stansbury's N.C. Evidence (Brandis Revision, 1973), § 125.

Defendant contends the cases should have been dismissed at the close of the evidence. He argues the evidence fails to show the property was stolen by someone other than defendant. While it is true that a defendant cannot be convicted of receiving stolen property which he has stolen himself, such is not the case in a charge of possession of stolen property. The concept of "receiving" involves someone other than defendant stealing the property and then transferring possession of it to the defendant. A defendant cannot "receive" property from himself.

N.C.Gen.Stat. 14-71.1, effective 1 October 1977, was apparently passed to provide protection for society in those incidents where the State does not have sufficient evidence to prove who committed the larceny, or the elements of receiving. This could occur where the State has no evidence as to who committed the larceny and has, by the passage of time, lost the probative benefit of the doctrine of possession of recently stolen property. To require the State to prove who committed the larceny as an element of this offense would defeat the obvious intent of the legislature. On a charge of possession of stolen property, it is not necessary that the State prove someone other than the defendant stole the property. See N.C.P.I. Crim. 216.47. See generally Crowell and Farb, 1977 Legislation Affecting Criminal Law and Procedure (pt. II), p. 2, Administration of Justice Memoranda, Institute of Government (September 1977). There was sufficient evidence to overcome the motion for nonsuit. This assignment of error is overruled.

We have examined defendant's other assignments of error and find no merit in them. Defendant received a fair trial, free from prejudicial error.

No error.

MORRIS (now Chief Judge) and MITCHELL, JJ., concur.