State v. Reagan , 35 N.C. App. 140 ( 1978 )

240 S.E.2d 805 (1978) 35 N.C. App. 140

STATE of North Carolina
v.
William Clyde REAGAN, Nos. 75CR10737 and 75CR12498, and Timothy Wade Reagan, Nos. 75CR12499 (Conspiracy), and 75CR12500 (Breaking and Entering and Larceny).

No. 7717SC433.

Court of Appeals of North Carolina.

January 24, 1978.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Rebecca R. Bevacqua, Raleigh, for the State.

Robert S. Cahoon, Greensboro, for defendant-appellant William C. Reagan.

Jess S. Moore, Jr., Reidsville, for defendant-appellant Timothy Reagan.

PARKER, Judge.

Defendants contend that the search of the barn where the stolen tobacco was found was unlawful and violated their fourth amendment constitutional rights. The initial discovery of the stolen tobacco was made by Jones, the victim of the larceny, when he looked into the locked barn through a hole in the wall. Since no officer participated in anyway at that time, defendants' fourth amendment rights were not then violated. The security against unreasonable searches and seizures afforded by the fourth amendment applies solely to governmental action and is not invaded by acts of individuals in which the government has no part. State v. Peele, 16 N.C.App. 227, 192 S.E.2d 67 (1972).

Before admitting testimony concerning the subsequent warrantless search made by the officers, the court conducted a voir dire examination from which it found facts and determined that the search was valid by reason of the consent given by Irvin Smith, the tenant who rented the farm from defendant William Reagan. In this ruling we find no error. A law enforcement officer may conduct a valid search without a warrant if consent to the search is given "[b]y a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises." G.S. 15A-222(3). A tenant in possession of the premises is such a person. In re Dwelling of Properties, Inc., 24 N.C.App. 17, 210 S.E.2d 73 (1974). The evidence in this case shows that Smith was a tenant in possession of the barn owned by defendant William Reagan at the time the stolen tobacco was placed therein and at the time of the search. Smith's testimony on the voir dire examination clearly shows that, although he was not then using the barn, his possessory interest as tenant of the farm extended to and included the barn. He testified:

The barn was in my custody and control. I had the keys to it. The barn was located on the farm that I had possession of. . . . I voluntarily opened the barn for [the officers]. I had nothing to do with putting the tobacco in there. I knew nothing about it. Bill told me that this was his uncle's tobacco.

The landlord's temporary use of the barn at the time of the search did not extinguish the tenant's interest which the landlord recognized by seeking the tenant's permission to use the barn. The evidence shows that after the stolen tobacco was placed in the barn the landlord locked it and gave the tenant a key, thereby recognizing his continuing interest in the barn. The record fully supports the court's determination on voir dire that the entry and search of the barn were valid by reason of the consent given by the tenant.

There was no error in denial of defendants' motions for nonsuit. The testimony of Somers, a co-conspirator, showed both defendants were guilty of the conspiracy with which they were charged. Although such testimony should be acted upon by the jury with caution, the unsupported testimony of a co-conspirator is sufficient to sustain a verdict. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974). The co-conspirator's testimony was sufficient in this case to establish the guilt of both defendants not only of the conspiracy charged but of the crimes contemplated by the conspiracy. It makes no difference that the defendant William Reagan was not present when the breaking and entering and the larceny were committed, for once a conspiracy is shown, each conspirator is responsible until he withdraws from the conspiracy for all acts committed by the others in the execution of the common purpose and is equally guilty as a principal with the other participants in the commission of the crimes contemplated by the conspiracy, even though not personally present when those crimes are committed. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975) death penalty vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. Grier, 30 N.C.App. 281, 227 S.E.2d 126 (1976). There was no evidence in this case that William Reagan ever withdrew from the conspiracy.

The indictments charged that each defendant "did feloniously break and enter" the Jones packhouse. Defendants assign error to various portions of the court's charge to the jury in which reference was made to breaking or entering. We find no error. "It has long been the law in this State in prosecutions under this statute [G.S. 14-54] and its similar predecessors that where the indictment charges the defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient; and instructions allowing juries to convict on the alternative propositions are proper." State v. Boyd, 287 N.C. 131, 145, 214 S.E.2d 14, 22 (1975). See also State v. Vines, 262 N.C. 747, 138 S.E.2d 630 (1964).

We have carefully examined all of defendants' remaining assignments of error. None disclose prejudicial error or merit detailed discussion.

No Error.

BROCK, C. J., and ARNOLD, J., concur.