State v. Daniels
| Decision Date | 06 November 1979 |
| Docket Number | No. 793SC521,793SC521 |
| Citation | 259 S.E.2d 396,43 N.C.App. 556 |
| Parties | STATE of North Carolina v. Edward Earl DANIELS. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.
Willis A. Talton, Greenville, for defendant-appellant.
When we consider the record on appeal the indictment, the verdict and the judgment we find fatal error. The defendant was charged in the bill of indictment with larceny by an employee, G.S. § 14-74. The jury found him guilty of "larceny," and the judgment recites that he was convicted of "misdemeanor larceny."
It is hornbook law that "an indictment will not support a conviction for a crime all the elements of which crime are not accurately and clearly alleged in the indictment." State v. Perry, 291 N.C. 586, 592, 231 S.E.2d 262, 266 (1977), and cases cited therein. The bill of indictment in the case at bar charged defendant only with the statutory offense of larceny by an employee. The elements of that offense are clearly set out in the statute and include as one essential component that the employee initially possess the goods lawfully by virtue of having been entrusted with their possession by his employer. G.S. § 14-74; State v. Wilson, 101 N.C. 730, 7 S.E. 872 (1888). While the evidence adduced at trial in this case was sufficient to support a conviction of the offense charged, the judge instructed the jury that they could return one of three verdicts: "Guilty of larceny by an employee, guilty of larceny, not guilty." Thereafter, he charged as to the elements of larceny, and the jury subsequently returned a verdict of "guilty of larceny." That is, the jury found the defendant guilty of common law larceny.
We first point out that a conviction of the offense of larceny, either at common law or under G.S. § 14-72, requires that a trespass, actual or constructive, be shown. State v. Bullin, 34 N.C.App. 589, 239 S.E.2d 278 (1977); State v. Babb, 34 N.C.App. 336, 238 S.E.2d 308 (1977); State v. Bailey, 25 N.C.App. 412, 213 S.E.2d 400 (1975). Not only is this element different from the essential elements of the offense under G.S. § 14-74, it is completely inconsistent with that statute's requirement that the employee gain possession lawfully. The two are wholly separate offenses, and each requires different evidentiary showings. In short, larceny is not a lesser-included offense of larceny by an employee.
Thus, it is not necessary for us...
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State v. Brown, 8129SC854
...of common law larceny requires evidence inconsistent with that supporting a conviction of larceny by an employee. State v. Daniels, 43 N.C.App. 556, 259 S.E.2d 396 (1979). Common law larceny requires a trespass, either actual or constructive. Larceny by an employee requires lawful Defendant......
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State Carolina v. Burge
...N.C. Gen.Stat. § 67–4.3, defendant could not be convicted of violating that statute. As this Court observed in State v. Daniels, 43 N.C.App. 556, 558, 259 S.E.2d 396, 397 (1979), a defendant cannot be found guilty of an offense not charged in the criminal pleading: The resolution of the iss......
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State v. Hicks
...of error for the denial of his motion for appropriate relief as a motion for arrest of judgment in this Court, State v. Daniels, 43 N.C.App. 556, 259 S.E.2d 396 (1979), and allow Judgment arrested. WELLS, J., concurs. ...