State v. Cook, 254

• Decision Date: 24 February 1965
• Docket Number: No. 254,254
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Herbert P. COOK.

Page 305

140 S.E.2d 305

263 N.C. 730

STATE of North Carolina v. Herbert P. COOK.

No. 254.

Supreme Court of North Carolina.

Feb. 24, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Warren C. Stack and James L. Cole, Charlotte, for defendant appellant.

RODMAN, Justice.

The evidence would permit a jury to find these facts: James Atkinson was, in January 1964, operating a service station on Independence Boulevard in Charlotte. The service station was owned by Gulf Oil Corporation (Gulf). On May 31, 1962, Gulf and Atkinson, as part of a single transaction, executed three documents. One was captioned 'SERVICE STATION LEASE,' another 'CONTRACT OF SALE,' the other 'AUTOMOTIVE GASOLINE AGREEMENT (DELIVERY AND STORAGE).' The lease required Atkinson to conduct his business in such manner that the value of the property as a service station would not be depreciated. He specifically agreed to 'furnish such services and accommodations to retail gasoline customers at such times as are customarily provided by gasoline service stations in Dealer's area * * *.'

The contract of sale obligated Atkinson to purchase from Gulf the petroleum products sold at the service station. One of the conditions enumerated in the contract of purchase provided: 'When transportation is furnished by SELLER, SELLER'S liability ceases and title passes to PURCHASER when bulk product passes connection between SELLER'S delivery hose and PURCHASER'S receiving connection.'

The delivery and storage agreement recites: 'WHEREAS, the parties hereto desire to provide for Dealer a readily available and adequate supply of automotive gasolines and to relieve Dealer of the necessity of investing capital which is and otherwise would be represented by automotive gasoline inventories.' Based on this recital, the parties agreed:

'1. Dealer authorizes Gulf at any time while this Agreement is in effect to deliver such grades of automotive gasoline into the storage tanks now located or later installed by Gulf at said premises in such quantities and at such times as Gulf sees fit * * *.

'2. Dealer agrees to hold and care for all gasoline delivered hereunder without compensation as the property of Gulf, it being understood and agreed that until said gasoline is purchased by Dealer as herein provided, title to all said gasolines shall be vested in and remain the property of Gulf * * *.

'4. * * * Dealer is authorized to sell the gasoline to his customers in the ordinary course of his business at such prices and on such terms as Dealer shall determine, and it is agreed that title to said gasoline shall pass to Dealer at the meters on the pumps. Dealer shall pay Gulf for all gasoline so purchased chased and withdrawn by Dealer * * *.

'6. The pumps, meters and computers located upon the premises have been jointly checked by Gulf and Dealer * * *.'

About midnight on January 31, 1964, a red tractor with tank trailer was driven to Atkinson's Gulf Station on Independence Boulevard, and 'approximately 1,208 gallons of gasoline were pumped into one of the two storage compartments located in said red tanker from the underground storage tanks located and situated upon the property known as Atkinson's Gulf Station.' The station was not open for business at that time.

Police officers of Charlotte discovered the tractor-trailer as it was pumping gasoline from the storage tank. Defendant Cook was present and in charge of the tractor-trailer. When accosted by the police officers, he said that he was pumping gas into the underground tank. Then asked if he had to use the pump to deliver the gas, he said he had purchased the gasoline. The market value of the 1208 gallons of gasoline pumped from the storage tank to the tractor-trailer was, according to defendant Cook, $253.68. Witnesses for the State fixed the market value in excess of $300.00.

At no time between May 31, 1962 and January 31, 1964, had Atkinson asserted any claim to, or ownership of, the gasoline in the underground storage tanks. He had always asserted it belonged to Gulf; it had not at any time asserted Atkinson's ownership of the gasoline in the underground storage tanks. It regularly invoiced him with the gasoline pumped from the underground tanks. The amount taken from the storage tanks was measured by meters on the pumps making retail deliveries.

Defendant contends: The evidence would justify a jury in finding that there had been an epidemic of thefts of gasoline from service stations in Charlotte. The Charlotte police, acting through Atkinson induced Cook to take Gulf's gasoline from the underground tank. He relied on his purchase from Atkinson when he pumped the gas from the tank. He was beguiled and led to commit a crime by Atkinson, who was acting for and on behalf of the Police Department.

The court treated the evidence as sufficient to raise the defense of entrapment. Conceding, without deciding, that the evidence was sufficient to warrant submission of the question of entrapment to the jury, the first question for determination is: Did the court err in its charge relating to the burden of proof on the defense of entrapment?

The court told the jury defendant could not be convicted if he had been entrapped. The court defined entrapment in apt language, to which no exception was taken. It then stated the ingredients of the crime of grand larceny, explaining that the essential facts must be found beyond a reasonable doubt before the jury could return a verdict of guilty, and if the State had failed to establish these facts beyond a reasonable doubt, the jury should return a verdict of not guilty. It then said:

'(And further, you will add to that instruction the matter of entrapment, which the Court has previously instructed you, and it will be your duty, in addition, to find beyond a reasonable doubt in this case that the defendant has not been entrapped, as the Court has defined that term to mean to you). And it will be your duty to bring in a verdict of not guilty as to this defendant if there is a reasonable doubt in your minds as to the matter of entrapment. You will give him the benefit of that doubt and you will acquit him in such event.'

Thereupon the court inquired: 'Are there any further contentions in this regard?' Counsel for defendant answered: 'No, sir, your Honor.'

Defendant assigns as error that portion of the charge included in parentheses, contending the court placed the burden on the defendant of establishing his defense of entrapment by proof beyond a reasonable doubt. The construction now placed on the charge is not only at variance with what defendant seemingly understood the court to mean when the charge was given, but is a misconstruction of what the court said.

Actually, the burden of establishing entrapment rests on the defendant to establish it to the satisfaction of the jury, but the court, instead of placing the burden where it properly belonged, put the burden on the State to disprove the defense of entrapment; and not only put the burden on the State to disprove that defense, but to disprove it beyond a reasonable doubt. The charge was more favorable to the defendant than he was entitled. State v. Brown, 250 N.C. 209, 108 S.E.2d 233; State v. Caldwell, 249 N.C. 56, 105 S.E.2d 189; State v. Holbrook, 228 N.C. 582, 46 S.E.2d 842; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; State v. Davis, 214 N.C. 787, 1 S.E.2d 104; 22 A C.J.S. Criminal Law § 573, p. 319.

Defendant assigns as error these portions of the charge:

'(If, after considering, comparing and weighing the evidence, the minds of the jurors are left in such a condition that they cannot say that they have an abiding faith to a moral certainty in the defendant's guilt, then they have a reasonable doubt; otherwise, not) * * * (Now, in this case...