State v. Scott , 11 N.C. App. 642 ( 1971 )

182 S.E.2d 256 (1971) 11 N.C. App. 642

STATE of North Carolina
v.
Willie SCOTT.

No. 7114SC456.

Court of Appeals of North Carolina.

July 14, 1971.

Atty. Gen. Robert Morgan by Staff Atty. Richard N. League, Raleigh, for the State.

Kenneth B. Spaulding and Norman E. Williams, Durham, for defendant-appellant.

BROCK, Judge.

I

Defendant assigns as error the denial of his motion for judgment as of nonsuit for the reasons that (1) the evidence was insufficient for the jury to find that defendant knew the goods to have been stolen, (2) that there was a fatal variance between the indictment and the proof with regard to the ownership of the stolen property, and (3) that the facts of the case would not permit a verdict of guilty of nonfelonious receiving and that, therefore, the court having nonsuited the felony, nothing remained for the jury to consider.

(1) In order to sustain a conviction, it must be shown that defendant knew the goods to have been stolen. However, guilty knowledge need not be shown by direct proof of actual knowledge, as by proof that defendant witnessed the theft, or that such theft was acknowledged to him by the person from whom he received the goods; rather, such knowledge may be implied by evidence of circumstances surrounding the receipt of the goods. State v. Miller, 212 N.C. 361, 193 S.E. 388. The test is whether defendant knew, or must have known, that the goods were stolen. State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814. In the case at bar, it was shown that defendant knew the goods did not belong to Little at the time defendant received them from Little; that, when the goods were discovered by police, defendant acknowledged that they had been stolen; and that defendant offered Little only a small fraction of the value of the goods. It must be acknowledged that there was certain evidence which tended to negate the requisite of guilty knowledge. However, considering the evidence in the light most favorable to the State, as we must upon a motion for nonsuit, we hold that there was sufficient evidence for the jury to find that the defendant knew that the goods had been stolen.

(2) The indictment charges defendant with receiving the three items in question, being the property of Glenn Peterson, and having a total value of $538.00, whereas the evidence shows that Peterson owned one of the items himself, that Sessoms owned another, and that the third was owned by Peterson and Sessoms jointly. This, contends defendant, was a fatal variance requiring nonsuit. However, there was evidence that certain of the property described in the bill of indictment was owned by Peterson, was stolen by Little, and was received by defendant. The Court having submitted to the jury only the offense of nonfelonious receiving, thereby removing from consideration any issue as to the value of the property, defendant was not prejudiced.

(3) Defendant contends that, under G.S. § 14-72(c), the crime of receiving stolen property, knowing it to be stolen, is rendered felonious in all cases in which the theft was accomplished under any of the circumstances enumerated under G.S. § 14-72(b) and that, therefore, the Court having granted his motion for nonsuit as to felonious receiving, it was error to submit the misdemeanor to the jury. We think it obvious that G.S. § 14-72(c) requires knowledge on the part of defendant, not only that the property was stolen, but also that such theft was within the ambit of G.S. § 14-72(b). There is no evidence to show that defendant knew that the theft by Little was accomplished by breaking and entering; hence G.S. § 14-72(c) has no application to this case. The Court was of the opinion that the evidence as to the value of the property was insufficient for the jury to find defendant guilty of receiving stolen property of a value in excess of $200.00, and the correctness of that determination is not before us on this appeal. The Court properly submitted to the jury the offense of nonfelonious receiving.

II

Defendant assigns as error the admission of the evidence obtained during the search, upon the ground that the search and seizure were in violation of the Fourteenth Amendment to the United States Constitution. It appears from the record that the sequence of events was as follows. The officers entered the premises and read the search warrant to Joyce Glenn. During the course of the search, they noticed the turntable and typewriter and, suspecting that these might be the items listed on the "hot sheet" as stolen, asked Joyce Glenn if the items were hers. The defendant, at that point, interjected that Joyce Glenn had nothing to do with it, and that he was responsible for anything in the house. There was no conversation between the officers and the defendant prior to that time. After being advised of his rights, the defendant then pointed out to the officers a number of items as being stolen property, including the turntable and typewriter in question. It is conceded that the officers were lawfully present upon the premises, pursuant to a valid search warrant. "Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without a warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand." State v. Simmons, 10 N.C.App. 259, 178 S.E.2d 90. Defendant contends that the foregoing rule has no application to this case for the reason that the typewriter and turntable, although they were in plain sight, were indistinguishable from other similar articles, that the illegality of their possession by defendant was not obvious, and that, therefore, there was no probable cause for their seizure. The stolen articles were not seized until after defendant had freely acknowledged that they were stolen and after this acknowledgment there was ample probable cause.

This assignment of error is overruled.

III

Defendant assigns as error the portion of the Court's charge to the jury in which the element of guilty knowledge was defined. The relevant portion of the charge is as follows:

"* * * The Court instructs you that the existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry, which, if pursued, would disclose that conclusion."

In State v. Stathos, 208 N.C. 456, 181 S.E. 273, an instruction of similar import was held to constitute reversible error. The test is not whether a reasonable man would or should have known or suspected that the goods had been stolen. Rather, it is whether the defendant did know them to be stolen, either by proof of actual knowledge or because, under the circumstances, it can be said that he must have known that the goods were stolen. See State v. Miller and State v. Oxendine, supra. We hold that the portion of the charge above quoted constitutes prejudicial error, for which defendant is entitled to a new trial.

New trial.

MORRIS and HEDRICK, JJ., concur.