State v. Lilly

Court of Appeals of North Carolina
State v. Lilly, 213 S.E.2d 418 (1975)
25 N.C. App. 453; 1975 N.C. App. LEXIS 2287
Morris, Vaughn, Clark

State v. Lilly

Opinion

MORRIS, Judge.

Defendant has abandoned his first two assignments of error. His remaining assignment of error relates to the denial of his motions for nonsuit at the close of the State’s evidence and at the close of all the evidence. The State relied entirely upon the doctrine of possession of recently stolen property to overcome defendant’s motions for judgment as of nonsuit. Defendant first contends the evidence in this case is insufficient for the doctrine to apply. We disagree. As was stated in State v. Foster, 268 N.C. 480, 487, 151 S.E. 2d 62, 67 (1966),

“[i]t is not always necessary that the stolen property should have been actually in the hands or on the person of the accused, it being sufficient if the property was under his exclusive personal control. 52 C.J.S., Larceny, § 107; 32 Am. Jur., Larceny, § 140; 1 Wharton’s Criminal Evidence, 12th Ed. by Anderson, Presumptions and Inferences, § 135. This Court said in S. v. Harrington, 176 N.C. 716, 96 S.E. 892: ‘The principle is usually applied to possession which involves custody about the person, but it is not necessarily so limited. “It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence.” S. v. Johnson, 60 N.C. 237.’ ”

Defendant next argues that his motions for nonsuit should have been granted because there is no evidence that the stolen property was worth more than $200, and without such evidence a conviction for felonious larceny cannot be sustained. The State admits that the defendant’s conviction for felonious larceny cannot be sustained where, as here, the jury acquitted the defendant of felonious breaking and entering and the trial court failed to instruct the jury to fix the value of the property taken in order to determine whether the value was in excess of $200, the burden of proof as to value in excess of $200 being upon the State as an essential element of the crime of felonious larceny where defendant is not charged with or found guilty of felonious *456 breaking or entering as a part of the same occurrence. It is the State’s contention, however, that the verdict in this case must be treated as a verdict of guilty of misdemeanor larceny, and the case remanded for resentencing. We agree. When faced with a similar problem in State v. Jones, 275 N.C. 432, 439, 168 S.E. 2d 380, 385 (1969), our Supreme Court made the following statement:

“Our conclusion on this appeal is as follows: The jury having failed to find that the larceny of which defendant was convicted related to property of a value of more than two hundred dollars, the verdict must be considered a verdict of guilty of larceny of personal property of a value of two hundred dollars or less. This being a misdemeanor, the judgment imposed a sentence in excess of the legal maximum. Hence, although the verdict will not be disturbed, the judgment is vacated; and this decision will be certified to the Court of Appeals with direction to remand the case to the Superior Court of Guilford County for the pronouncement of a judgment herein as upon a verdict of guilty of misdemeanor-larceny.”

On the basis of the foregoing authority, defendant’s case is hereby remanded for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny.

Remanded for resentencing.

Judges Vaughn and Clark concur.

Reference

Full Case Name
State of North Carolina v. Spencer Lilly
Cited By
7 cases
Status
Published
Syllabus
1. Larceny 7 — doctrine of possession of recently stolen property — sufficiency of evidence Evidence was sufficient for the doctrine of possession of recently stolen property to apply in this prosecution for felonious larceny where such evidence tended to show that officers requested permission from defendant's brother to search the brother's apartment two days after the break-in and larceny were reported, the brother gave his permission and accompanied officers to the apartment, they found the stolen property in the apartment, the property had not been there when the brother left his apartment for work that morning, defendant was the only person other than the brother who had a key to the apartment, and on that same day defendant admitted that he had the stolen merchandise in his possession, and the trial court properly submitted the evidence to the jury.Page 454 2. Larceny 7 — evidence of felonious larceny insufficient — verdict of guilty of misdemeanor larceny Where the jury acquitted defendant of felonious breaking and entering and the trial court failed to instruct the jury to fix the value of the property taken in order to determine whether the value was in excess of $200, the burden of proof as to value in excess of $200 being upon the State as an essential element of the crime of felonious larceny where defendant was not found guilty of felonious breaking and entering as a part of the same occurrence, the verdict must be treated as a verdict of guilty of misdemeanor larceny.