State v. Crawford , 29 N.C. App. 117 ( 1976 )

223 S.E.2d 534 (1976) 29 N.C. App. 117

STATE of North Carolina
v.
David Eugene CRAWFORD.

No. 7516SC847.

Court of Appeals of North Carolina.

April 7, 1976.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Jack L. Cozort, Raleigh, for the State.

John Wishart Campbell, Lumberton, for defendant appellant.

HEDRICK, Judge.

Defendant contends that his motion for judgment as of nonsuit, his motion for a new trial, or his motion to set aside the verdict should have been granted. He argues that there was "a fatal variance between allegations of ownership" of the premises entered and of the property taken in the indictment and proof of ownership at trial. The bill of indictment charged the defendant with breaking or entering the premises and larceny of the property of "Mobile Home Brokers, Inc., a corporation." At trial, John Yow testified that he travelled to Fayetteville and identified some of the stolen property which was taken from the mobile homes. He testified further that he worked for Mobile Home Brokers. When asked who owned the property, he answered: "It was owned by Mobile Home Brokers, the address that I mentioned before [510 W. 2d St., Lumberton]." The property had been purchased by "our central purchasing in Fayetteville." On cross-examination, he testified that:

"Mobile Home Industries owned Mobile Home Brokers. It is a wholly owned subsidiary of Mobile Home Industries. As to whether there are any officers of Mobile Home Brokers, Inc., I don't think I understand the question. There is not a President and Vice President of Mobile Home Brokers, Inc., but there are those officers of Mobile Home Industries."

Later, on cross-examination, Yow testified that: ". . . [He was] not positive that Mobile Home Brokers, as such [was] incorporated. Mobile Home Industries, Inc., is incorporated in Tallahassee, Florida. As far as [he knew], Mobile Home Brokers, Inc., [was] not a corporation."

The allegations of ownership described in a bill of indictment are essential. State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965). If the evidence offered at trial fails to show the ownership as alleged in the indictment of the premises entered and the property taken, a motion for judgment of nonsuit should be allowed, both to the charge of breaking or entering and to the charge of felonious larceny. State v. Eppley, 282 N.C. 249, 259, 192 S.E.2d 441, 448 (1972); State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967); State v. Brown, supra. When the evidence as summarized above is considered in the light most favorable to the State, there is at most some conflict in the testimony of witness Yow as to the corporate status of the owner of the property. Conflicts in the evidence are to be resolved by the jury. State v. Mabry, 269 N.C. 293, 152 S.E.2d 112 (1967). In our opinion, the evidence was sufficient for the jury to find that Mobile Home Brokers, Inc., was the owner of the premises and the stolen property and to support the verdicts. See State v. McCall, State v. Sanders, State v. Hill, 12 N.C.App. 85, 182 S.E.2d 617 (1971). This assignment of error is overruled.

Defendant contends that the Fayetteville Police conducted an illegal search of his apartment in violation of his Fourth Amendment Rights. On voir dire Officer Jimmy R. Cook testified that he went to the defendant's apartment along with Detective W. G. Campbell. The apartment was one of four in a large house at 224 Davis Street in Fayetteville. The occupant of apartment three stated that Al Broadway paid the rent on apartment four. The officers approached Mr. Broadway, who stood on the porch, and asked him if he rented apartment four. Broadway "stated that he, along with Mr. and Mrs. Crawford lived there". Broadway gave the officers written permission to search before they entered the premises. Once inside they found some of the stolen property which was later identified as belonging to Mobile Home Brokers, Inc. Following the voir dire examination, the trial court found "that one Allen Broadway was an occupant of the premises [which was searched], and signed a written permission to search those premises" and concluded that "the officers had a lawful right to enter the premises . .." The findings are supported by the evidence and the conclusions are consistent with the findings. The U. S. Supreme Court in United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), cited the rule as being:

"That where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either."

This assignment of error is not sustained.

By defendant's next assignment of error, he contends that a statement given by him to the police was "not freely, voluntarily and understandingly made". Again, after an extensive voir dire including introduction of the statement of rights and written waiver of rights form which the defendant signed, the court concluded that the statement was "voluntarily and understandingly made". The findings and the evidence support this conclusion. This assignment of error is overruled.

We have carefully examined the defendant's additional assignment of error and find it to be without merit.

The defendant had a fair trial free from prejudicial error.

No error.

BRITT and MARTIN, JJ., concur.