State v. Burnette

205 S.E.2d 357 (1974) 22 N.C. App. 29

STATE of North Carolina
v.
Gary BURNETTE.

No. 7428SC279.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen., Robert Morgan by Asst. Atty. Gen., George W. Boylan, Raleigh, for the State.

S. Thomas Walton, Asheville, for defendant.

CARSON, Judge.

The defendant was charged with the offense of receiving stolen goods in violation of G.S. § 14-71. The elements of this offense are that the goods are stolen by someone other than the defendant, that the defendant receives the goods knowing them to have been stolen, and that he continues such possession with a dishonest purpose. State v. Muse, 280 N.C. 31, 185 S.E.2d 214 (1971); State v. Grant, 17 N. C.App. 15, 193 S.E.2d 308 (1972). Considering all the evidence in the light most favorable to the State, the defendant could be shown to have possessed the stolen rings on 26 November 1972, knowing that the rings were stolen, and possessing them for a dishonest purpose. There is, however, no evidence tending to show that someone other than the defendant stole the rings or that the defendant received the rings from another. The burden of proof of these elements is the same as the elements of any other offense.

While the General Assembly might provide that the possession or offering for sale of goods, known to have been stolen, be declared a crime, it has not done so. G.S. § 14-71 applies only to receiving the stolen goods. Absent any evidence of receiving, which presupposes the theft by another, we hold that the judgment of nonsuit should have been granted. Whether the possession of the stolen items under the circumstances outlined would be sufficient to sustain a larceny charge is not before us. We do note, however, that receiving is not a lesser included offense of larceny; and jeopardy has not attached as to a proper larceny indictment. State v. Neill, 244 N.C. 252, 93 S.E.2d 155 (1956); State v. Brady, 237 N.C. 675, 75 S.E.2d 791 (1953); State v. Cassada, 6 N.C.App. 629, 170 S.E.2d 575 (1969).

The judgment is reversed.

BRITT and HEDRICK, JJ., concur.