State v. Brady, No. 577

• Docket Nº: No. 577
• Citation: 237 N.C. 675, 75 S.E.2d 791
• Case Date: May 06, 1953
• Court: United States State Supreme Court of North Carolina

Page 791

75 S.E.2d 791 237 N.C. 675 STATE,
v.
BRADY. No. 577 Supreme Court of North Carolina. May 6, 1953

[237 N.C. 677] Pittman & Webb, John T. Page, Jr. and Hugh A. Lee, Rockingham, for defendant, appellant.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Gerald F. White, Member of Staff, Raleigh, for the State.

DENNY, Justice.

The bill of indictment charged the defendant with feloniously receiving 'watches, fishing reel, fountain pens, a camera, and other personal property of the value of more than $100.00, * * * the goods * * * of Tom Harris and other persons,' knowing them to have been feloniously stolen.

The defendant contends that since the State did not show that Tom Harris was the owner of any of the stolen property and did not state in the bill of indictment the names of the owners of the various stores in Wadesboro, Rockingham, and Hamlet, from which the goods were stolen, that there is a variance between the indictment and the proof, and his motion to dismiss as of nonsuit should have been allowed.

The appellant is relying on the case of State v. Pugh, 196 N.C. 725, 147 S.E. 7, 8, in which the bill of indictment charged the defendant and others with the larceny of '334 pounds of leaf tobacco, of the value of $58.97, the goods and chattels of L. B. Jenkins Company,' and with receiving same knowing it to have been feloniously stolen or taken in violation of C.S. § 4250 (now G.S. § 14-71). The State offered no evidence tending to show who owned the tobacco. The jury returned a verdict of guilty and upon appeal this Court held that the crime as charged was not supported by the evidence and reversed the court below in its refusal to sustain the motion for judgment as of nonsuit. However, an examination of the original record discloses that Pugh was convicted of larceny. And it is the law with us that where a bill of indictment charges larceny and receiving, a verdict of guilty of larceny is tantamount to an acquittal on the charge of receiving. State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725. Moreover, the case of State v. Haddock, 3 N.C. 162, cited as authority for the holding in State v. Pugh, supra, was one in which the defendant was only charged with larceny. There the Court held that an 'indictment should state in whom the property was, or that it was the property of some person unknown; otherwise, he could not plead in bar to another indictment for the same case.'

The crimes of larceny and of receiving stolen goods, knowing them to have been stolen, are separate and distinct offenses. And it seems to be uniformly held that an indictment for larceny must state

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whose property was stolen, or that it is the property of some person or persons unknown. However, receiving stolen property is a 'sort of secondary crime based upon a prior commission of the primary crime of larceny. It presupposes, but does not include, larceny. Therefore the elements of larceny [237 N.C. 678] are not elements of the crime of receiving.' State v. Martin, 94 Wash. 313, 162 P. 356. And in Wharton's Criminal Evidence, 10th Edition, Volume 1, section 325b, page 643, the essential elements of the crime of receiving stolen goods which must be proven, are stated as follows: '(a) The stealing of the goods by some other than the accused; (b) that the accused, knowing them to be stolen, received or aided in concealing the goods, and (c) continued such possession or concealment with a dishonest purpose.' See also Burdick, Law of Crime, Volume 2, section 610, page 437.

The only reason for requiring the ownership of stolen property to be stated in an indictment for receiving stolen goods, is to negative ownership in the accused. State v. Bading, 236 Iowa 468, 17 N.W.2d 804.

In the indictment under...