State v. Boomer, 764SC917
| Decision Date | 01 June 1977 |
| Docket Number | No. 764SC917,764SC917 |
| Citation | 33 N.C.App. 324,235 S.E.2d 284 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Irene BOOMER, Cleveland Roberts, and Erving Roberts. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Brock & Foy by Louis F. Foy, Jr., Trenton, for defendants.
Defendants have brought forward their sixth, seventh, and ninth assignments of error in three arguments. In the first of these they argue that the trial court erred in denying their motion for nonsuit as to felony and misdemeanor larceny; in the second they maintain that there was insufficient evidence to submit an issue of felony larceny to the jury; and in the third they contend that there was insufficient evidence to support a verdict of guilty of felony larceny. These three variously worded assignments of error present but one question whether the State's evidence was sufficient to withstand motion for nonsuit. If it was, it constituted substantial evidence warranting submission of the issue to the jury on the one hand and sufficient evidence to support the verdict on the other.
Defendants argue that their motion for nonsuit as to any charge of larceny should have been granted because the State's evidence was insufficient to show that the two feeder pigs identified by the owner and his hand at the livestock market were the same feeder pigs allegedly stolen. We disagree. The State's evidence tended to show that the Trenton Livestock Market did not normally have feeder pigs on its lot because of higher prices prevailing elsewhere. The employee of the market testified that he put the pigs in a separate pen segregated from other stock. Testimony showed that the pigs identified by Parker and his hand were scratched and bruised. Parker's farm hand specifically identified one of the pigs from a peculiar rupture associated with its castration. The employee of the livestock market had noted the ruptured incision on the castrated pig when one of the defendants claimed the pig was a boar and tried to explain the rupture. Taken in the light most favorable to the State, the evidence identifying the feeder pigs as the ones stolen was sufficient to submit to the jury.
Next defendants contend that even if the evidence is sufficient to identify the two feeder pigs as the ones stolen, the evidence is nevertheless insufficient to show felonious larceny. They argue correctly that the State had to, and did in fact, rely on the theory of possession of recently stolen property. Defendants go on to argue that if larceny was shown at all through the possession, it could only be misdemeanor larceny because of the $120.00 value of the feeder pigs. We disagree. It is well settled that all of the essential elements of larceny must be established by sufficient, competent evidence; and the essential facts can be proved by circumstantial evidence where the circumstances raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture. State v. Delk, 212 N.C. 631, 194 S.E. 94 (1937); 6 Strong, N.C.Index 3d, Evidence, § 21, p. 60. Before the presumption of guilt stemming from possession of recently stolen property can attach, the State must show by positive or circumstantial evidence a prima facie larceny of the goods. 50 Am.Jur.2d, Larceny, § 149, p. 330.
At trial the State offered evidence to the effect that Parker owned the hogs; that at 9:30 a. m. on 9 March 1976, Parker and his hand accounted for all the hogs; that at 1:00 p. m. the same day, three were missing; and that three distinct sets of drag marks led from the pen area to a tobacco barn some eleven hundred yards away, wherein hog tracks were observed. The latter is circumstantial evidence of taking and asportation. It is also substantial evidence in that it raises a logical inference of taking and asportation of three animals rather than a mere conjecture or surmise.
In their tenth assignment of error defendants maintain that the only evidence of possession showed actual possession not of "the three hogs," but of only two of the hogs the two feeder pigs. Possession of a part of the recently stolen property under some...
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State v. Washington
...possession of part of the property under these circumstances warrants the inference that defendant stole all of it. State v. Boomer, 33 N.C.App. 324, 328, 235 S.E.2d 284, 287, cert. denied, 293 N.C. 254, 237 S.E.2d 536 In light of defendant's recent possession of the stolen items as well as......
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Robinson v. Lewis, 5:12-HC-2021-F
...the circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture." State v. Boomer, 33 N.C.App. 324, 327-28, 235 S.E.2d 284,286 (citing State v. Delk, 212 N.C. 631,194 S.E. 94 (1937)), cert. denied, 293 N.C. 254, 237 S.E.2d 536 (1977). In this......
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State v. Robinson
...circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture." State v. Boomer, 33 N.C. App. 324, 327-28, 235 S.E.2d 284, 286 (citing State v. Delk, 212 N.C. 631, 194 S.E. 94 (1937)), cert. denied, 293 N.C.254, 237 S.E.2d 536 (1977). In this c......
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State v. McNair, No. COA08-469 (N.C. App. 4/7/2009)
...the circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture." State v. Boomer, 33 N.C. App. 324, 327, 235 S.E.2d 284, 286, cert. denied, 293 N.C. 254, 237 S.E.2d 536 (1977). "Any contradictions or discrepancies arising from the evidence a......