State v. Friddle
| Decision Date | 02 June 1943 |
| Docket Number | 653. |
| Citation | 25 S.E.2d 751,223 N.C. 258 |
| Parties | STATE v. FRIDDLE et al. |
| Court | North Carolina Supreme Court |
Criminal prosection on indictment charging (1) felonious breaking and entry with intent to steal, under C.S. § 4235; and (2) larceny.
The evidence for the State tends to show that the defendants, on or about 21 August, 1942, broke and entered the store building of one J.S. Knight in the nighttime with intent to steal and that they did, in fact, take and carry away six 100-pound bags and seventy 60-pound bags of sugar.
The defendants admit that they entered the store building and removed the sugar, but they contend, and offered evidence tending to show, that it was by pre-arrangement with one Thurman Jones, a clerk or employee of Knight in charge of the store. Their evidence tends to show that Knight had an excess amount of sugar for which he would have to surrender ration coupons or else surrender the sugar, unless it was made to appear that the sugar had been stolen; that Jones approached them, explained the situation and stated that if they could report the sugar as stolen they would not be required to surrender coupons. He arranged to sell the sugar to them on condition that they remove it at night. Jones unlocked the window, told them how to enter and the way to go after they had loaded. He also told them that Knight knew about and had consented to the arrangement which he was making. They paid for the sugar on the afternoon of 21 August and removed it that night as directed.
There was a verdict of guilty. From judgment thereon defendants appealed.
Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.
J Hampton Price, of Leaksville, and George A. Younce, of Greensboro, for defendants, appellants.
The court, in the course of its charge, instructed the jury as follows:
The defendants except. They also except for that the court failed to state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon, particularly in respect to felonious intent.
The second exception, under C.S. § 564, standing alone, is not sufficiently presented. However, the two, in effect, present the same question and are so interrelated that they may be treated as one.
The defendants admit that they broke and entered and that they took and carried away 1,020 pounds of sugar. They deny, however, that they did so with a felonious intent. Their defense rests upon this contention and the existence or non-existence of this intent was the real and only issue of fact presented. They now challenge the sufficiency of the charge in respect thereto.
Felonious intent is an essential element of the crime defined in C.S. § 4235. It must be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the "intent to steal". State v. Spear, 164 N.C. 452, 79 S.E. 869; State v. Crisp, 188 N.C. 799, 125 S.E. 543. The same is true as to larceny. State v. Arkle, 116 N.C. 1017, 21 S.E. 408; State v. Holder, 188 N.C. 561, 125 S.E. 113.
The court, in the quoted part of its charge, made "against the will of Knight" the test of guilt. Again when the jury returned for further instructions it repeated this charge, adding that "if a person takes the property of another with the consent of his employee or some other person connected with the actual owner, that would not relieve the person of all the other elements of larceny or breaking and entering the store in this case," and further, that if they broke and entered and took the sugar "With the consent of Jones and against the will of Knight *** the defendants would be guilty of breaking and entry and larceny."
While perhaps, the consent of the employee "does not relieve the person of all the other elements" of the crime neither does it burden them therewith. Nor does the fact that the breaking and entry was against the...
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