State v. Tessnear , 254 N.C. 211 ( 1961 )

118 S.E.2d 393 (1961) 254 N.C. 211

STATE
v.
Max TESSNEAR.

No. 2.

Supreme Court of North Carolina.

March 1, 1961.

T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for the State.

Hamrick & Hamrick, Rutherfordton, for defendant appellant.

WINBORNE, Chief Justice.

At the outset defendant contends and urges that the trial court erred in denying his motion to quash the bill of indictment, and in arrest of judgment, for that the bill contains no definite reference to the time the alleged crime was committed. In this connection, while it is true that the bill of indictment here contains no such date, this Court has uniformly held that when time is not of the essence of the offense leaving out the date does not make it defective. See State v. Peters, 107 N.C. 876, 12 S.E. 74; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745.

The crime of receiving stolen goods is not one of the offenses in which time is of the essence, G.S. § 15-153 and G.S. § 15-155. Indeed, as said by Avery, J., in State v. Shade, 115 N.C. 757, 20 S.E. 537, "Where the defendant thinks an indictment * * * fails to impart information sufficiently specific as to the nature of the charge, he may before trial, move the court to order that a bill of particulars be filed; and the court will not arrest the judgment after verdict, where he attempts to reserve his fire until he takes first the chance of acquittal." Error here is not made to appear.

The defendant contends next that the trial court erred in refusing to grant his motion for nonsuit at the close of all the evidence. On such a motion the evidence is to be taken in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. On such a motion the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State's evidence. It may be used to explain or make clear that which has been offered by the State. The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to a jury. See State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Smith, 237 N.C. 1, 74 S.E.2d 291.

There is evidence in the record tending to show that after the goods were taken from the Harrill store, the defendant bought them from persons responsible for the larceny, but not concerned in this appeal, and remarked, "You must have pulled a hot job somewhere," and that the value of the items taken from the Harrill store was $163.50. Therefore, applying the rule stated above, the defendant's motion for nonsuit was properly overruled. State v. Yow, 227 N.C. 585, 42 S.E.2d 661; State v. Brady, 237 N.C. 675, 75 S.E.2d 791.

However defendant next contends, and rightly so, that the trial court erred in its charge in that it did not explain to the jury that before they could convict the defendant of the crime charged, they must find beyond a reasonable doubt that the goods received by the defendant were of the value of more than $100. In the bill of indictment the defendant was charged with a felony, that is, receiving goods of the value of more than $100. G.S. § 41-71 and G.S. § 14-72. In order for the defendant to be found guilty under G.S. § 14-71, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the goods was more than $100. This is an essential element of the crime because G.S. § 14-72 specifically provides that "the receiving of stolen goods knowing them to be stolen, of the value of not more than one hundred dollars, is hereby declared a misdemeanor."

It must be noted that the record fails to disclose that any of the goods were ever found in the defendant's possession, or that the defendant received all of the goods or just a part of them. The conclusion then is that the trial court erred when it failed to charge the jury on an essential element of the crime with which the defendant was indicted and stands convicted. The jury could have gotten the erroneous impression that the receiving of any of the stolen goods, knowing them to be stolen, was sufficient to convict the defendant. State v. Andrews, supra.

Other assignments of error relate to matters which may not recur upon another trial. Hence they need not be discussed here.

For error pointed out, let there be a

New trial.