State v. Cooper

• Decision Date: 28 February 1962
• Docket Number: No. 2,2
• Citation: 124 S.E.2d 91,256 N.C. 372
• Parties: STATE, v. John L. COOPER.
• Court: North Carolina Supreme Court

Page 91

124 S.E.2d 91

256 N.C. 372

STATE, v. John L. COOPER.

No. 2

Supreme Court of North Carolina.

Feb. 28, 1962

T. W. Bruton, Atty. Gen., and G. A. Jones, Jr., Asst. Atty. Gen., for the State.

Hamlin, Potts, Ramsey & Hudson, Brevard, for defendant, appellant.

BOBBITT, Justice.

Defendant was indicted and convicted of the larceny of property of the value of more than $200.00, a felony. There was ample evidence to support the verdict and the verdict supports the judgment. evidence offered by the State tended to show the value of the property allegedly stolen by defendant was more than $200.00. Defendant offered no evidence as to the value of such property.

The court failed to instruct the jury that (1) one of the elements of the crime 'charged in the bill of indictment' was that the stolen property must be of a value in excess of $200.00, and (2) if the value of the property taken did not exceed $200.00, the defendant, if guilty at all, would be guilty only of a misdemeanor. Defendant, based on timely exceptions, assigns as error the court's failure to so charge.

Defendant's said assignments raise questions of frequent recurrence in prosecutions for larceny in our superior courts. Consequently, we deem it appropriate to state what we consider and now hold the correct and applicable rules.

At common law, both grand larceny and petit larceny were felonies. If the value of the goods stolen exceeded twelve pence, the felony was grand larceny, punishable by death. If the value was twelve pence or under, the felony was petit larceny, punishable by whipping or some corporal punishment. 32 Am.Jur., Larceny § 3; 52 C.J.S. Larceny § 60; State v. Andrews (1957), 246 N.C. 561, 566, 99 S.E.2d 745.

The statute now codified as G.S. § 14-70 appears as Section 1075 of [256 N.C. 374] the Code of 1883. It was codified as Section 3500 of the Revisal of 1905 and as Section 4249 of the Consolidated Statutes of 1919. This statute abolished the common law distinctions between grand larceny and petit larceny and provided that the offense of 'felonious stealing' was punishable as petit larceny. Hence, it was held that 'the common lawrule that all persons who participate in a petit larceny, whether present or absent, are indictable and punishable as principals is established law in North Carolina.' State v. Bennett, 237 N.C. 749, 752, 76 S.E.2d 42, and cases cited.

The statute now codified as G.S. § 14-71 appears as now written, except as noted below, as Section 56, Chapter 34 of the Revised Code of 1854. It was codified as Section 1074 of the Code of 1883, as Section 3507 of the Revisal of 1905 and as Section 4250 of the Consolidated Statutes of 1919. The crime defined in G.S. § 14-71 (receiving stolen goods), although punishable as larceny, was, until the Act of 1949 (S.L. 1949, Chapter 145), denominated a misdemeanor. By the Act of 1949, the words 'criminal offense' were inserted in lieu of the word 'misdemeanor.'

The statutes now codified as G.S. § 14-70 and § 14-71 were in full force and effect when the Act of 1895 (Public Laws 1895, Chapter 285) was passed. The Act of 1895 is entitled, 'An act to limit the punishment in certain cases of larceny,' and provides: 'SECTION 1. That in all cases of larceny where the value of the property stolen does not exceed twenty dollars, the punishment shall, for the first offense, not exceed imprisonment in the penitentiary, or common jail, for a longer term than one year. SEC. 2. That if the larceny is from the person, or from the dwelling by breaking and entering in the day time, section one of this act shall have no application. SEC. 3. That in all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen.' The provisions of the Act of 1895 were codified, without material change, as Section 3506 of the Revisal of 1905.

In State v. Harris (1896), 119 N.C. 811, 26 S.E. 148, the defendant, upon conviction of larceny from the person, was sentenced to imprisonment for a term of two years. On appeal, the defendant challenged the sentence as unlawful on the ground the value of the property stolen was less than $20.00. In affirming the judgment, it was held the Act of 1895 'does not make it necessary that an indictment for the larceny of a sum less than $20 should charge the taking from the person or from a dwellinghouse in the daytime. (Citations)' The opinion of Avery, J., includes the following: 'The superior court has general jurisdiction of larcenies. The presumption is in favor of its jurisdiction; and where a defendant relies upon the fact that the amount stolen was less than $20, and that the taking was neither from the person nor a dwelling house, the fact that a sum less than $20 was taken neither from the person nor a dwelling house is a matter of defense, which it is incumbent on him to show in diminution of the sentence. The consequences of the conviction of the felony are in all respects the same, except that the law has given him the opportunity to ask for a smaller punishment when certain facts appear. Where there is a dispute about the value of the thing taken, it is likewise incumbent on the defendant to demand a finding on that subject by the jury.' (Our italics)

In State v. Davidson (1899), 124 N.C. 839, 32 S.E. 957, the defendant, upon conviction on an indictment charging the larceny of property of the value of $1.00, was sentenced to four years' imprisonment. It was held that, since the larceny was not from the person or from the dwelling by breaking and entering in the daytime and the alleged value of the property did not exceed $20.00, 'it was erroneous to pass sentence of imprisonment for more than one year.'

In State v. Dixon (1908), 149 N.C. 460, 62 S.E. 615, the defendant was convicted of receiving stolen property and sentenced to imprisonment for a term of two years. In upholding the judgment, Brown, J., said: 'It is contended that the court could sentence to no longer term than 12 months, as the value of the property was under $20. We fail to discover any such finding in the record, or any evidence to sustain such contention. The property stolen consisted of 18 hams, 11 shoulders and 8 sides of meat, and doubtless the quantity of it deterred the defendant from attempting to prove that the meat was worth no more than $20. However that may be, it was matter of defense, and it was incumbent on defendant to prove its value in diminution of sentence. State v. Harris, 119 N.C. 812.'

yin State v. Shuford (1910), 152 N.C. 809, 67 S.E. 923, the value of the property did not exceed $20.00. This fact was held immaterial where the larceny was from a dwellinghouse by breaking and entering in the nighttime; and a judgment imposing a prison sentence of three years was upheld.

In re Holley (1910), 154 N.C. 163, 69 S.E. 872, was before this Court on certiorari to review a judgment entered at a habeas corpus hearing. The judgment, which denied the petitioner's application for discharge, was affirmed. The petitioner had been indicted for larceny of property of the value of $10.00 and upon conviction was sentenced to a prison term of five years. In pronouncing judgment, the trial judge found 'that the goods stolen were worth between $250 and $300,' and that the defendant had been convicted in three other criminal cases, including a case of larceny, at the same term, in which judgment was suspended. Decision was based in part on the proviso in Section 3500 of the Revisal of 1905, the statute now codified as G.S. § 14-70. Hoke, J., (later C. J.), refers to State v. Harris, supra, as holding, inter alia, these propositions: '(3) On a trial for larceny in the superior court the fact that the amount stolen was less than $20, and that the taking was neither from the person nor a dwellinghouse, is a matter of defense which it is incumbent on the defendant to show in diminution of the sentence. (4) Where, in the trial of an indictment for larceny, there is a dispute about the value of a thing taken, it is incumbent on the defendant to demand a finding upon that subject by the jury.' The opinion continues: 'It will thus appear that the amount or value of the property is not now an essential ingredient of the crime of larceny in this state, nor does the statement of such value in the bill conclude on the question of punishment. It is only a matter in amelioration of the punishment, to be raised and determined at the instance of the defendant and as an issue of fact, and therefore there is no indication on this record and judgment that the sentence was not within the power of the court that imposed it. Apart from this, petit larceny at common law was regarded as infamous and subject to corporal punishment.'

In State v. Smith (1911), 157 N.C. 578, 585, 72 S.E. 853, 856, Walker, J., refers to In re Holley, supra, and State v. Shuford, supra, as holding 'that, while the statute graded the punishment of larceny according to the value of the stolen goods, it did not create any new offense, and the value of the property taken was not an essential element of the crime, but the provision was inserted in the statute only for the purpose of ameliorating the punishment, if it is whown on the trial by the defendant, or if it otherwise appears, that the goods are of less value than $20.'

Thus, prior to the Act of 1913, discussed below, the larceny of property of any value was a felony; but a defendant was permitted to raise and have determined the issue as to whether the value of the stolen property exceeded $20.00. Upon trial of such issue, it was incumbent on defendant to show the value of the stolen goods did not exceed $20.00 in diminution of the sentence.

The Act of 1913 (Public Laws 1913, Chapter 118) is entitled, 'AN ACT TO MAKE UNIFORM THE CRIME OF LARCENY IN THE STATE OF NORTH CAROLINA,' and provides: 'SECTION 1. That the larceny of and receiving of stolen goods knowing them to be stolen, of the value of not more than twenty dollars, is hereby declared...