State v. Brown, 8129SC854

• Citation: 56 N.C.App. 228,287 S.E.2d 421
• Decision Date: 02 March 1982
• Docket Number: No. 8129SC854,8129SC854
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Junior Claude BROWN.

Page 421

287 S.E.2d 421

56 N.C.App. 228

STATE of North Carolina v. Junior Claude BROWN.

No. 8129SC854.

Court of Appeals of North Carolina.

March 2, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Daniel F. McLawhorn, Raleigh, for the State.

Appellate Defender Project for North Carolina by Asst. Appellate Defender Malcolm R. Hunter, Jr., and Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

VAUGHN, Judge.

Three of defendant's assignments of error relate to the indictment for larceny by an employee. Defendant first argues that the indictment is defective because it fails to allege a trust delivery. We overrule this assignment of error.

G.S. 14-74 states the following:

"If any servant or other employee, to whom any money, goods or other chattels ... by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods, or other chattels ... with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; ... the servant so offending shall be punished as a Class H felon: Provided, that nothing contained in this section shall extend to ... servants within the age of 16 years."

According to State v. Babb, 34 N.C.App. 336, 238 S.E.2d 308 (1977), an indictment charging a violation of G.S. 14-74 must allege that the property was received and held by the defendant in trust, or for the use of the owner, and that being so held, it was feloniously converted or made away with by the servant or agent.

The present indictment alleges that the defendant feloniously carried away two black angus cows which were owned by Royce B. Thomas. It further alleges that

"[a]t the time of this larceny the defendant was the employee of Royce B. Thomas and the said cows had been delivered safely to the defendant to be kept to the use of Royce B. Thomas, and the defendant converted them to his own use with the intent to steal them and to defraud his employer, without the consent of his employer. The defendant occupied a position of trust and confidence."

Because the indictment alleges that the cows were delivered to defendant "to be kept to the use of " his employer, we hold the indictment sufficiently alleges a trust delivery. It is not necessary for the indictment to allege who delivered the cows to defendant. See also State v. Maslin, 195 N.C. 537, 539, 143 S.E. 3, 5 (1928), rev'd on other grounds, State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Lanier, 89 N.C. 517, 519 (1883).

Defendant next argues that the indictment is inadequate because it fails to allege that he is at least 16 years old. He cites the statutory phrase, "Provided, that nothing contained in this section shall extend to ... servants within the age of 16 years." Defendant contends that age is an essential element of G.S. 14-74, which must be alleged, proven and charged. We disagree.

We are aided in our analysis by State v. Connor, 142 N.C. 700, 55 S.E. 787 (1906). Addressing a question similar to the present one, the Supreme Court stated:

"It is well established that when a statute creates a substantial criminal offense, the description of the same being complete and definite, and by subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negative in the indictment, nor is proof required to be made in the first instance on the part of the prosecution."

142 N.C. at 701, 55 S.E. at 788.

As noted in State v. Connor, supra, there are no magic words for creating an exception to an offense. Neither is placement of a phrase controlling. The determinative factor is the nature of the language in question. Is it part of the definition of the crime or does it withdraw a class from the crime?

Upon examining G.S. 14-74, we conclude that the phrase in question withdraws a class of defendants from the crime of larceny by an employee. The language before the phrase completely and definitely defines the offense. Servants within 16 years of age are excepted from that definition. Because the phrase creates an exception to G.S. 14-74, we hold that age is not an essential element which the indictment must allege and the State initially prove. See State v. Connor, supra. Compare with G.S. 14-27.2.

We recognize that a legislature cannot so define the elements of an offense that defendant has an "unfair" allocation of the burden of proof. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292 (1977); State v. Trimble, 44 N.C.App. 659, 666, 262 S.E.2d 299, 303 (1980). Age, however, is a fact particularly within defendant's knowledge. To place the burden on defendant to raise the exception to G.S. 14-74 and to prove that he comes within it does not exceed the constitutional limits established. Defendant's assignment of error is overruled.

Defendant's third assignment of error is an alleged fatal variance between the indictment against him and the evidence offered at...