State v. Herman

HILL, Judge.

The sole question before this Court is whether the court erred in refusing to submit to the jury an issue of guilt of unauthorized use of a motor-propelled conveyance as provided in G.S. 14-72.2 [as rewritten by the 1977 General Assembly] as a lesser included offense of the larceny of an automobile under G.S. 14-72, for which the defendant was convicted.

Assuming arguendo that the unauthorized use of a motor vehicle is a lesser included offense of larceny of an automobile, we conclude that the court was under no duty to submit the lesser offense to the jury for the reason that there was no evidence to support such a verdict.

“The trial court is not required to submit to the jury the question of a defendant’s guilt of a lesser degree of the crime charged in the indictment when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972).” State v. Reese, 31 N.C. App. 575, 230 S.E. 2d 213 (1976).

In this case the defendant was charged with the felonious larceny of an automobile. The evidence presented by the State was positive as to each and every element of felonious larceny, and there is no conflicting evidence relating to any element. The defendant was seen stealing the car. It was discovered about a week later in North Park Mall. The alternator was damaged, as were the brakes. No keys were in the car. All of this is evidence of larceny of an automobile — not unauthorized use of an automobile.

In defendant’s trial we find

No error.

Chief Judge MORRIS and Judge Martin (Harry C.) concur.