State v. Kirkpatrick

238 S.E.2d 615 (1977) 34 N.C. App. 452

STATE of North Carolina
v.
Coy KIRKPATRICK, Anthony Jones, and Randy O. Lee.

No. 7715SC356.

Court of Appeals of North Carolina.

November 16, 1977.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. W. A. Raney, Jr., Raleigh, for the State.

Daniel H. Monroe, Graham, for Anthony Jones.

Hemric & Hemric by H. Clay Hemric and H. Clay Hemric, Jr., Burlington, for Coy Kirkpatrick and Randy O. Lee.

BROCK, Chief Judge.

Each defendant argues that it was error to submit the case to the jury under a felonious breaking or entering charge founded upon G.S. 14-56. Defendants argue that in order for a breaking or entering to constitute a felonious breaking or entering under G.S. 14-56, it must be alleged and proved that the larceny was of goods of a value of more than $200.00. In other words defendants argue that the grade of the breaking or entering under G.S. 14-56 depends upon the grade of the larceny alleged and proved. In this case all of the evidence established that the value of the property taken was less than $200.00, which is ordinarily misdemeanor larceny, therefore defendants argue that they can be found guilty of no more than misdemeanor breaking or entering.

Defendants make resourceful arguments upon how G.S. 14-56 should be interpreted, but we are not persuaded. It appears to us that the language of G.S. 14-56 does not require the actual larceny of anything in order to convict of felonious breaking or entering. It is the breaking or entering with intent to commit larceny that is proscribed.

"If any person shall, with intent to commit any felony or larceny therein, break or enter any . . . motor vehicle. . . containing any goods . . . or other thing of value . . .." G.S. 14-56.

Therefore the success of the larceny venture does not determine the grade of the breaking or entering as defendants argue. It is only necessary to establish the intent to commit larceny in order to establish a felonious breaking or entering of the motor vehicle. In State v. Quick, 20 N.C.App. 589, 202 S.E.2d 299 (1974) the defendant was charged and convicted of felonious breaking or entering a motor vehicle. The evidence disclosed that he took nothing from the vehicle. The vehicle contained only some various papers, pens, cigarettes, matches, and a shoe bag. We held that such items were personal property and subject to larceny. The conviction of the defendant for felonious breaking or entering in Quick was held to be without error. The State's evidence in the present case tends to show that defendants were more successful in the larceny than was established in Quick.

Defendants' further arguments that G.S. 14-56 should be construed to mean that the breaking or entering must be with intent to commit felonious larceny is not convincing. The statute clearly says "with intent to commit any felony." In our opinion the statute makes it a felony to break or enter a motor vehicle containing any goods, wares, freight, or other thing of value with intent to commit larceny, whether the larceny be felonious or misdemeanor larceny. This assignment of error is overruled.

Defendants Kirkpatrick and Jones assign as error the denial of their motions to dismiss for insufficiency of the evidence. Considered in the light most favorable to the State, the State's evidence would justify the jury's finding that Kirkpatrick entered Cassidy's garage, removed the C.B. radio from Cassidy's automobile, left Cassidy's garage with the C.B. radio and defendant Lee's brown sock, ran when the police officer commanded him to stop, placed the C.B. radio and socks beside an oak tree as he ran, and continued running until cornered in a parking lot. Considered in the light most favorable to the State, the State's evidence would justify the jury's finding that Jones entered Cassidy's garage for about 30 seconds, undertook to remove the C.B. radio from Cassidy's automobile leaving his fingerprint on the dashboard, returned to the Rambler auto and drove it while Kirkpatrick and Lee returned to Cassidy's garage where they successfully removed the C.B. radio. We think the evidence was sufficient to require submission of the charges against Kirkpatrick and Jones to the jury. This assignment of error is overruled.

Defendant Jones assigns as error the denial of his motion to sever his trial from the trials of Kirkpatrick and Lee. "Consolidation of cases for trial is generally proper when the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment would be competent and admissible on the other." State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). In the present case each of the defendants was charged with participation in the same offense at the same time and place. "As a general rule, whether defendants who are jointly indicted should be tried jointly or separately is in the sound discretion of the trial court, and, in the absence of a showing that appellant has been deprived of a fair trial by consolidation, the exercise of the court's discretion will not be disturbed upon appeal." State v. Brower, supra. Defendant Jones has failed to show that he was deprived of a fair trial in any way. This assignment of error is overruled.

Defendant Jones' exception to the admission of the testimony of the officer who lifted his fingerprint from the dashboard of Cassidy's automobile requires no discussion. This assignment of error is overruled.

In our opinion each of the defendants received a fair trial, free from prejudicial error.

No error.

PARKER and ARNOLD, JJ., concur.