State v. Locklear , 33 N.C. App. 647 ( 1977 )

236 S.E.2d 376 (1977) 33 N.C. App. 647

STATE of North Carolina
v.
Larry LOCKLEAR.

No. 7716SC117.

Court of Appeals of North Carolina.

July 20, 1977. Certiorari Denied September 12, 1977.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Daniel C. Oakley, Raleigh, for the State.

Arthur L. Lane, by Paul B. Eaglin, Fayetteville, for defendant appellant.

Certiorari Denied by Supreme Court September 12, 1977.

MORRIS, Judge.

In his initial argument on appeal, defendant contends that the trial judge erred in instructing the jury concerning the doctrine of possession of recently stolen goods.

"It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances—the time between the theft and the possession, the type of property involved, and its legitimate availability in the community." State v. Raynes, 272 N.C. 488, 491, 158 S.E.2d 351, 353-54 (1968).

In order for the doctrine to apply, there must be evidence of three things: "(1) That the property described in the indictment was stolen, the mere fact of finding one man's property in another man's possession raising no presumption that the latter stole it; (2) that the property shown to have been possessed by accused was the stolen property; and (3) that the possession was recently after the larceny, since mere possession of stolen property raises no presumption of guilt. (Citations omitted.)" State v. Foster, 268 N.C. 480, 485, 151 S.E.2d 62, 66 (1966).

Defendant maintains that the presumption did not properly apply for two reasons. He first argues that the State ". . . never identified the property in the sense of showing that the mass of wiring was the fruit of criminal conduct." This argument is without merit. State's evidence clearly showed that several spools of copper wire and some conduit pipe owned by the Libby Owens Ford Glass plant were missing from the stockyard; that the conduit pipe found at the scene of defendant's arrest was positively identified as belonging to Libby Owens Ford; that although the recovered copper wire was not marked to allow positive identification, it was the same as that used by Libby Owens Ford as "control cable wire"; and that the copper wire was found at the scene of defendant's arrest along with the conduit pipe. We believe that this evidence was sufficient to show, prima facie, that copper wire had been stolen from the Libby Owens Ford supply yard and that the wire found in the woods was that wire.

Defendant also contends that the instruction with regard to possession of recently stolen goods should not have been given because the evidence was insufficient to show that the wire and pipe discovered at the scene of his arrest was in his possession. "The possession sufficient to give rise to such inference does not require that the defendant have the article in his hand, or his person or under his touch. It is sufficient that he be in such physical proximity to it that he has the power to control it to the exclusion of others and that he has the intent to control it." State v. Eppley, 282 N.C. 249, 254, 192 S.E.2d 441, 445 (1972).

The State introduced evidence that the wire and pipe was located in a rural, wooded area; that defendant was observed by law enforcement officers in close proximity of the wire on two occasions; that defendant told his companion, Marcine Jacobs, that the material was copper from the Glass Plant; that the wire's insulation was burning; that defendant, upon returning to the area, beat the burning wire with a stick in an apparent attempt to put out the fire; and that defendant stopped beating the wire and attempted to flee the area when he heard a noise in the woods. Obviously, the evidence indicated that defendant was in close physical proximity to the wire on more than one occasion. His actions with respect to putting out the fire showed that he had the intent to exert control over the stolen property. In view of the clandestine and secluded area in which the wire was deposited as well as defendant's repeated visits to it, we believe defendant's actions were sufficient to show his power to control the material to the exclusion of others. Accordingly, we hold that the State's evidence established defendant's possession of the wire and pipe, and that the trial court did not err in instructing the jury as to the doctrine of possession of recently stolen goods.

Defendant's next argument relates to the following portion of the judge's charge:

"Now, ladies and gentlemen, for a person to be guilty of a crime it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit the crime of larceny, felonious larceny, each of them is held responsible for the acts of the others done in the commission of that crime. So, I charge that if you should find from the evidence, beyond a reasonable doubt, that on or about the sixth day of September, 1974, the defendant, Larry Locklear, acting either by himself or acting together with Ronald Dean Oxendine or Jennings Locklear or either one or both of them, took and carried away copper wire belonging to Libby Owens Ford, Inc., without the consent of Libby Owens Ford, Inc., knowing that he, Larry Locklear, was not entitled to take it, and intending at the time to deprive Libby Owens Ford, Inc., of the use of the property permanently and that the property was worth more than two hundred dollars then it would be your duty to return a verdict of guilty of felonious larceny as charged in the bill of indictment."

Initially, defendant contends that this portion of the charge constitutes prejudicial error because the State never established the corpus delicti of the crime of larceny, either on 6 September, 1974, or at any other time. As defendant correctly notes in his brief, a larceny conviction may not stand unless there is (1) proof that a crime has been committed, i. e., proof of the corpus delicti, and (2) proof that defendant committed the crime. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968). However, we do not agree with defendant that the State failed to establish the corpus delicti. There can be no question that the State introduced evidence showing that a larceny had taken place. As for the date the larceny took place, Marcine Jacobs, who was defendant's girl friend, testified that she accompanied defendant and two others to the Libby Owens Ford plant on 6 September 1974. This was sufficient to raise the inference that the crime took place on 6 September and thereby prima facie established the corpus delicti as of that date. This contention is without merit.

Defendant also argues that this portion of the charge amounts to a fatal variance between the crime alleged in the indictment (larceny on 8 October 1974) and shown by the State's evidence (larceny on 6 September 1974). It is true that the State's evidence tended to indicate that the theft took place on 6 September. On the other hand, defendant's evidence tended to show that the crime took place on 6 October and that defendant had an alibi on that evening. Where the evidence is conflicting, the trial judge has a duty to apply the law to the various factual situations presented. G.S. 1-180; Faison v. Trucking Co., 266 N.C. 383, 146 S.E.2d 450 (1966). Since the State's evidence supported the finding that the crime took place on 6 September, the trial judge properly instructed the jury to that effect. A review of the entire charge further reveals that the trial judge also summarized defendant's evidence and contentions with regard to when the theft took place and his alibi at that time. Thus, the trial judge explained the conflict in the evidence to the jury and instructed them that in order to find defendant guilty, they would have to find that the crime took place on 6 September, as the State contended. We believe, and so hold, that the charge, viewed as a whole, was proper upon the evidence presented at trial.

Defendant's assignment of error, if error there be, is properly addressed not to the judge's instructions but instead to the denial of defendant's motion for nonsuit.

It is well established that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense. State v. McDowell, 1 N.C.App. 361, 161 S.E.2d 769 (1968). Whether there is a fatal variance between the indictment and the proof is properly raised by a motion for judgment as of nonsuit. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). Where time is not of the essence of the offense charged and the statute of limitations is not involved, a discrepancy between the date alleged in the indictment and the date shown by the State's evidence is ordinarily not fatal. G.S. 15-155; State v. Lemmond, 12 N.C.App. 128, 182 S.E.2d 636 (1971). "But this salutary rule, preventing a defendant who does not rely on time as a defense from using a discrepancy between the time named in the bill and the time shown by the evidence for the State, cannot be used to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense." State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961).

In the present case, defendant presented an alibi defense. His alibi, however, related to 6 October 1974, not to 8 October 1974 as charged in the indictment or 6 September 1974 as shown by the State's evidence. Therefore, it is apparent that defendant did not rely on the date charged in the indictment, nor did the variation in the State's evidence deprive defendant of his right adequately to present his defense. Under these circumstances, we believe, and so hold, that the variance between the date in the indictment and that shown by the State's evidence is not prejudicial. See State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965).

We have reviewed defendant's remaining assignment of error and find it to be without merit.

Defendant received a fair trial free from prejudicial error.

No error.

PARKER and CLARK, JJ., concur.