State v. Crawford

164 S.E.2d 625 (1968) 3 N.C. App. 337

STATE
v.
Albert Leland CRAWFORD.

No. 688SC247.

Court of Appeals of North Carolina.

December 31, 1968. Certiorari Denied February 11, 1969.

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

Herbert B. Hulse, Goldsboro, for defendant appellant.

CAMPBELL, Judge.

The defendant presents three questions for decision. (1) Was it improper to permit the testimony of the witness Sasser? (2) Should the motion for judgment as of nonsuit have been allowed? (3) Did the trial court commit error in the charge to the jury?

The defendant's first contention is that the testimony of Sasser was unfair and prejudicial since this witness was permitted to repeat, emphasize and reiterate the testimony of Whaley. The defendant, relying on State v. Fowler, 270 N.C. 468, 155 S.E.2d 83, argues that this was "over corroboration." However, Fowler is readily distinguishable from the instant case. The testimony objected to in Fowler was offered for purposes of corroboration, but in fact it was flatly contradictory. The trial court there emphasized this purported "corroborative" testimony by interrupting the witness in order for the judge to make a written note and by calling attention to it in the charge. In the instant case, the testimony objected to was clearly corroborative, and it closely followed the testimony of Whaley, except in two minor details. It was in no way contradictory.

Whaley testified: "* * * I saw two subjects run from the back door of the building." Sasser testified that Whaley told him: "* * * (A)s he got to the corner of the building two people ran out of the back of the building * * *." Whaley also testified: "I was about fifteen or twenty yards from the defendant Albert Leland Crawford when he shot at me." Sasser testified that Whaley told him: "* * * (T)hat some time during this chase across the field that he fired a weapon several times at him * * *."

During the testimony of Sasser, the trial court instructed the jury as follows:

"Anything he says he told him is to be received as corroborative testimony, ladies and gentlemen of the jury, corroborating Sgt. Whaley, if you find in fact it does do so; otherwise you will not consider it at all."

In addition to this admonition to the jury, the trial court cautioned the jury on five different occasions that they would consider Sasser's testimony only insofar as it tended to corroborate Whaley and that they should disregard it and dismiss it from their mind and memory if it did not corroborate Whaley. With regard to the firing of the pistol, the trial court told the jury: "The Court does not recall that Sgt. Whaley said the alleged defendant fired several times. The Court recalls that he said he fired once. Do not consider the words ``several times'."

The action of the trial court in so instructing the jury as to the manner and method of considering the testimony of Sasser prevented any prejudicial effect of such testimony. We hold that in this case the testimony of Sasser was proper and in keeping with the liberal North Carolina rule which permits the introduction of corroborative evidence in support of the credibility of another witness. Stansbury, N.C. Evidence 2d, §§ 50, 51 and 52. "Slight variances in corroborating testimony do not render such testimony inadmissible." State v. Case, 253 N.C. 130, 116 S.E.2d 429.

The defendant's second contention is that the motion for judgment as of nonsuit should have been allowed. The first bill of indictment charged the crime of feloniously breaking and entering the Barry building with intent to steal, an offense set out in G.S. § 14-54. In the instant case, it was incumbent upon the State to establish that, at the time the defendant broke and entered, he intended to steal something. However, it was not incumbent upon the State to establish the ownership of the property which he intended to steal, the particular ownership being immaterial. Therefore, the fact that the bill of indictment alleged "intent to steal, take and carry away the merchandise, chattels, money, valuable securities of the said Barry of Goldsboro, Inc.," when the stolen property actually belonged to Ward, was not fatal.

"Under G.S. § 14-54, if a person breaks or enters one of the buildings described therein with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent or whether, if successful, the goods he succeeds in stealing have a value in excess of $200.00. In short, his criminal conduct is not determinable on the basis of the success of his felonious venture." State v. Smith, 266 N.C. 747, 147 S.E.2d 165.

In State v. Friddle, 223 N.C. 258, 25 S.E.2d 751, we find:

"Felonious intent is an essential element of the crime defined in C.S. § 4235 [now G.S. § 14-54]. It must be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the ``intent to steal.'"

There was ample evidence to justify the submission of the case to the jury on the charge of feloniously breaking and entering the Barry building with the intent to steal therefrom and to justify the jury in finding the defendant guilty of that crime.

The second count of the first bill of indictment charged the defendant with larceny of $76.10 "of the goods, chattels, and moneys of the said Barry of Goldsboro, Inc." However, the State's evidence revealed that "(t)he money was strictly and absolutely under the control and ownership of Ward Vending Machine Company and no one at Barry's [handled] the money or [did] anything about it. The machine [was] owned by Ward Vending Company and the only access to the machine was by employees of Ward Vending Company." While the evidence disclosed that Ward paid a percentage of the profit from the operation of the vending machines to Barry, the money itself belonged to Ward. Hence, there was a fatal variance, because the State charged larceny of property belonging to Barry, but proved larceny of property belonging to Ward. In view of this, the defendant's motion for judgment as of nonsuit should have been sustained as to the charge of larceny. State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Brown, 263 N.C. 786, 140 S.E.2d 413.

The defendant's third contention is that the trial court committed error in its charge to the jury. The trial court, referring to the involvement of two men, instructed the jury that the defendant could be convicted if he was found by the jury to be one of the two men. The defendant contends that there was no evidence of another man being involved and that this, therefore, was prejudicial to him. However, the testimony of Whaley was sufficient to justify this charge. We have reviewed all of the defendant's exceptions to the charge, and we do not find any prejudicial error.

Reversed as to the charge of larceny.

Affirmed as to the charge of breaking and entering.

MALLARD, C. J., and MORRIS, J., concur.