State v. Walker

171 S.E.2d 91 (1969) 6 N.C. App. 740

STATE of North Carolina
v.
Robert WALKER, Alias Robert Hill.

No. 6919SC531.

Court of Appeals of North Carolina.

December 17, 1969.

Robert Morgan, Atty. Gen., by Richard M. League, Staff Attorney, Raleigh, for the State.

George L. Burke, Jr., Salisbury, E. C. Burnett, Jr., Spartanburg, S. C., for defendant appellant.

GRAHAM, Judge.

Defendant's motions for judgment of nonsuit were properly overruled. While there must be a taking and carrying away of the personal property of another to complete the crime of larceny, it is not necessary that the property be completely removed from the premises of the owner. "The least removal of an article, from the actual or constructive possession of the owner, so as to be under the control of the felon, will be a sufficient asportation." State v. Jones, 65 N.C. 395, 397. Taken in the light most favorable to the State, the evidence permits an inference that defendant removed the rings from the place where they were kept with the intent to deprive the owner of their possession permanently and to convert them to his own use or the use of some other person. The fact that the property may have been in defendant's possession and under his control for only an instant is immaterial if his removal of the rings from their original status was such as would constitute a complete severance from the possession of the owner. State v. Green, 81 N.C. 560; State v. Jackson, 65 N.C. 305; 52A C.J.S. Larceny § 6, p. 427. There was testimony that defendant was successful in putting some of the rings in his pocket. This, standing alone, constitutes sufficient evidence to go to the jury on the question of asportation. For a case directly in point see People v. Lardner, 300 I11. 264, 133 N.E. 375, 19 A.L.R. 721.

Defendant assigns as error the overruling of his objection to a question asked him on cross-examination about a statement he made to police officers that he took the rings because he had a girl pregnant and needed some money to get her out of trouble. Defendant admitted having made the statement. This cross-examination was relevant for the purpose of showing that defendant had a motive for the alleged crime. Stansbury, N.C.Evidence 2d, § 83. It was also competent to show that defendant had made prior statements inconsistent with his testimony at the trial. Stansbury, N.C.Evidence 2d, § 46.

Defendant further assigns as error various portions of the charge, contending that the court misstated some of the evidence, erred in instructing the jury to carefully scrutinize defendant's testimony, and overly stressed the State's contentions. These contentions are without merit. Slight inaccuracies in the statement of the evidence will not be held for reversible error when not called to the attention of the court at the time. State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Sterling, 200 N.C. 18, 156 S.E. 96. The court not only instructed the jury to carefully scrutinize the testimony of the defendant as an interested witness but also that if they believed his testimony and found it to be true they were to give to it the same weight as that of a disinterested witness. This instruction was proper. 3 Strong, N.C.Index 2d, Criminal Law, § 117. The contentions of the State and defendant were, in our opinion, fairly stated.

Defendant's remaining assignments of error challenge the court's failure to instruct the jury as to its duty in fixing the value of the property taken and the failure of the court to submit to the jury the possible verdict of misdemeanor-larceny. These assignments of error are well taken.

The record reflects that the verdict of the jury was that the defendant was guilty of "grand larceny." The distinction between grand larceny and petty larceny has been abolished in this State for many years. G.S. § 14-70. (For a discussion of the history of the larceny statutes in this State see opinion of Bobbitt, J. [now C. J.], in State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.) While there is no longer a crime in this State designated as "grand larceny" we nevertheless consider the verdict of the jury as tantamount to a verdict finding the defendant guilty as charged in the bill of indictment. The bill of indictment charges the crime of felony-larceny in that it charges that the value of the property taken was in excess of two hundred dollars. G.S. § 14-72 declares that the larceny of property of the value of not more than two hundred dollars is a misdemeanor except where the larceny is from the person or by breaking and entering. It also provides that in all cases of doubt the jury shall, in the verdict, fix the value of the property stolen.

The only evidence concerning value in the instant case was that the total value of the thirty-five rings in the tray was $1501.25. The evidence, however, did not show that the defendant took all of the rings, nor did it show the value of those which he did take. Under these circumstances the evidence of value was equivocal and susceptible of diverse inferences. The court should therefore have submitted to the jury under appropriate instructions the issue of the defendant's guilt of misdemeanor-larceny.

There was also error in the failure of His Honor to instruct the jury that in order to convict the defendant of felony-larceny they were required to find beyond a reasonable doubt that he was guilty of larceny and that the value of the property stolen was more than two hundred dollars.

The recent case of State v. Jones, 275 N.C. 432, 168 S.E.2d 380, reaffirmed the decision of State v. Cooper, supra, and made clear that except in those cases where G.S. § 14-72 is inapplicable, the State must prove beyond a reasonable doubt that the value of the stolen property was more than two hundred dollars in order to convict of felony-larceny, and the trial judge must so instruct the jury even though no request is made for such instruction. The reason for this requirement is that the defendant's plea of not guilty places in issue every essential element of the offense, including the element of value of the property stolen, and the credibility of the testimony must be passed upon by the jury.

Since the jury was not instructed as to their duty to fix the value of the property in question, the effect is that the jury failed to find that the larceny of which defendant was convicted related to property of a value of more than two hundred dollars. Consequently, as in State v. Jones, supra, the verdict here must be considered as a verdict of guilty of larceny of personal property of a value of two hundred dollars or less. This is a misdemeanor and the judgment entered herein imposed a sentence greater than the maximum allowed therefor. The judgment is therefore vacated and this decision will be certified to the Superior Court of Rowan County for the pronouncement of judgment herein as upon a verdict of guilty of misdemeanor-larceny.

Error and remanded.

CAMPBELL and PARKER, JJ., concur.