State v. Carswell , 296 N.C. 101 ( 1978 )

249 S.E.2d 427 (1978) 296 N.C. 101

STATE of North Carolina
v.
Rex CARSWELL.

No. 53.

Supreme Court of North Carolina.

November 28, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Henry H. Burgwyn, Raleigh, for the State.

Simpson, Baker, Aycock & Beyer by Richard W. Beyer, Morganton, for defendant.

COPELAND, Justice.

The Court of Appeals held that the movement of the air conditioner in this case was an insufficient taking and asportation to constitute a case of larceny against the defendant. Because we believe that there was enough evidence to send the larceny charge to the jury, we reverse the Court of Appeals on this point and reinstate the judgment of Judge Thornburg.

This case comes to the Court only on the contention that the judge erroneously denied defendant's motion for nonsuit on the larceny charge. It is well settled that in ruling on such a motion, the evidence is considered in the light most favorable to the State, and the State is given the benefit of all reasonable inferences. State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973); State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970).

Larceny has been defined as "a wrongful taking and carrying away of the personal property of another without his consent, . . . with intent to deprive the owner of his property and to appropriate it to the taker's use fraudulently." State v. Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 232 (1953). "A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away." 4 W. Blackstone, Commentaries 231.

In State v. Green, 81 N.C. 560 (1879), the defendant unlocked his employer's safe and completely removed a drawer containing money. He was stopped before any of the money was taken from the drawer. This Court found these actions sufficient to constitute asportation of the money, and we upheld the larceny conviction.

The movement of the air conditioner in this case off its window base and four to six inches toward the door clearly is "a bare removal from the place in which the thief found [it]." The Court of Appeals apparently agreed; however, it correctly recognized that there is a taking element in larceny in addition to the asportation requirement. 4 W. Blackstone, supra at 231. See also State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964). The Court of Appeals stated that "here the problem with the State's case is that the evidence of asportation does not also constitute sufficient evidence of taking." 36 N.C.App. at 379, 243 S.E.2d at 913.

This Court has defined "taking" in this context as the "severance of the goods from the possession of the owner." State v. Roper, 14 N.C. 473, 474 (1832). Thus, the accused must not only move the goods, but he must also have them in his possession, or under his control, even if only for an instant. State v. Jackson, 65 N.C. 305 (1871). This defendant picked the air conditioner up from its stand and laid it on the floor. This act was sufficient to put the object briefly under the control of the defendant, severed from the owner's possession.

In rare and somewhat comical situations, it is possible to have an asportation of an object without taking it, or gaining possession of it.

"In a very famous case a rascal walking by a store lifted an overcoat from a dummy and endeavored to walk away with it. He soon discovered that the overcoat was secured by a chain and he did not succeed in breaking the chain. This was held not to be larceny because the rascal did not at any time have possession of the garment. He thought he did until he reached the end of the chain, but he was mistaken." R. Perkins, Criminal Law 222 (1957) (discussing People v. Meyer, 75 Cal. 383, 17 P. 431 (1888)).

The air conditioner in question was not permanently connected to the premises of Day's Inn Motel at the time of the crime. It had previously been pried up from its base; therefore, when defendant and his companion moved it, they had possession of it for that moment. Thus, there was sufficient evidence to take the larceny charge to the jury.

The defendant's and the Court of Appeals' reliance on State v. Jones, 65 N.C. 395 (1871), is misplaced. In that case, the defendant merely turned a large barrel of turpentine, that was standing on its head, over on its side. This Court held that shifting the position of an object without moving it from where it was found is insufficient asportation to support a larceny conviction. The facts of this case show that there was an actual removal of the air conditioner from its base in the window to a point on the floor four to six inches toward the door. Thus, Jones is not controlling.

For the reasons stated above, the decision of the Court of Appeals is reversed, and the larceny judgment reinstated.

REVERSED.

BRITT, J., did not participate in this decision.