State v. Williams

148 S.E.2d 209 (1966) 267 N.C. 424

STATE of North Carolina
v.
Thomas F. WILLIAMS.

No. 741.

Supreme Court of North Carolina.

May 25, 1966.

W. G. Pearson, II, Durham, Mitchell & Murphy, Raleigh, for defendant appellee.

T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

PER CURIAM.

The defendant complains that seven officers descended upon his home on the night of November 11, 1962, some of them going to his front door while others went to the back entrance. He testified that the officers did not have a search warrant; that no one said anything to him about one, neither did he ask about one, and even if he had given permission for the search of his premises at that time, it would have been because he was intimidated and frightened by the number of officers descending upon his home in the middle of the night; that this would not constitute a waiver of his right to require a search warrant; therefore, any testimony relating to finding of stolen property under these circumstances was incompetent. We cannot so hold and the exceptions relating thereto are not sustained.

Upon examination of the bills of indictment, it appears that they were drawn upon forms in general use by the solicitors, all of which contain three counts; one for storebreaking, the second for larceny and the third for receiving stolen property.

In the counts charging larceny, the property allegedly stolen is not described as having been taken from any storehouse, etc., and in none of the bills is the value of the property alleged to be more than $200.00. The consequence is that the conviction of the defendant upon these charges of larceny is in all instances a misdemeanor. State v. Brown, 266 N.C. 55, 145 S.E.2d 297. In the first case, No. 7774, the court imposed a sentence of not less than three nor more than five years on the count charging storebreaking, and the same sentence on the count charging larceny; the latter to begin at the expiration of the sentence for storebreaking. In 7775 the court pronounced judgments on both counts to begin at the expiration of the sentences imposed in 7774 and in cases Nos. 7776, 7777, 7778 and 7779 the sentences pronounced were related to sentences imposed in 7774.

In view of the fact that the larceny counts, as written, are misdemeanors, it is necessary that the causes be remanded for appropriate judgments with the exception of the sentence of not less than three nor more than five years imposed for storebreaking in No. 7774.

It is so ordered.

Remanded.

MOORE, J., not sitting.