State v. Hageman, 206A82

Decision Date03 November 1982
Docket NumberNo. 206A82,206A82
Citation307 N.C. 1,296 S.E.2d 433
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Bruce Gilbert HAGEMAN.

Rufus L. Edmisten, Atty. Gen. by Robert L. Hillman, Asst. Atty. Gen., Raleigh, for the State.

William B. Gibson, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Initially, we note a procedural question regarding defendant's right to appeal to this Court. Defendant was charged in two separate cases, one a misdemeanor and the other a felony. After he appealed his misdemeanor conviction to the Superior Court, the cases were consolidated for trial. Nevertheless, they remained two separate cases in which separate verdicts were returned and separate judgments were entered.

The Court of Appeals treated the cases separately. In a unanimous decision, it found no error in the original misdemeanor case, number 80CR51100. It was in case number 80CR52198 that Judge Becton dissented.

G.S. 7A-30 provides for a right of appeal to this Court from a decision of the Court of Appeals "rendered in a case ... in which there is a dissent." (Emphasis ours.) In Hendrix v. Alsop, 278 N.C. 549, 180 S.E.2d 802 (1971), this Court, after reviewing the legislative history of G.S. 7A-30(2) held that:

It is apparent ... the General Assembly of North Carolina intended to insure a review by the Supreme Court of questions on which there was a division in the intermediate appellate court; no such review was intended for claims joined or consolidated in the lower appellate court and on which that court rendered unanimous decision.

278 N.C. at 554, 180 S.E.2d at 806.

Although Hendrix was a civil case, we hold that the same rule applies to a criminal case. See, State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972).

We conclude that defendant did not have the right to appeal to this Court in case number 80CR51100. However, since the principal question presented in the case in which Judge Becton dissented might also apply to the other case, we elect to treat the attempted appeal in the misdemeanor case as a petition for discretionary review and allow the petition.

The first question presented by this appeal is whether attempted receiving stolen property can be a felony.

In case number 80CR52198, receiving stolen property, sterling silver flatware, the trial judge submitted possible verdicts of attempted felonious receipt of stolen goods or attempted nonfelonious receipt of stolen goods. The jury returned a verdict of guilty of attempted felonious receiving stolen property.

G.S. 14-3 provides:

(a) Except as provided in subsection (b), every person who shall be convicted of any misdemeanor for which no specific punishment is prescribed by statute shall be punishable by fine, by imprisonment for a term not exceeding two years, or by both, in the discretion of the court.

(b) If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H. felony.

In vacating that part of the trial court's judgment punishing defendant as a felon, the Court of Appeals held that an attempt to receive stolen goods was not within the purview of G.S. 14-3(b). We agree.

It is well established in this State that absent statutory provisions to the contrary, an attempt to commit a felony is a misdemeanor. State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938); State v. Stephens, 170 N.C. 745, 87 S.E. 131 (1915); State v. Jordan, 75 N.C. 27 (1876). In State v. Parker, 224 N.C. 524, 31 S.E.2d 531 (1944), defendants were convicted of the offense of "an attempt to feloniously receive stolen property knowing it to be stolen." This Court finding no error stated:

An unlawful attempt to feloniously receive stolen property, knowing it to have been stolen, is composed of two essential elements: (1) guilty knowledge at the time that the property had been stolen, and (2) the commission of some overt act with the intent to commit the major offense. (Citations omitted.)

224 N.C. at 525, 31 S.E.2d at 531.

The opinion in Parker did not consider the now well-established rule that absent statutory provisions to the contrary, attempt to commit a felony is a misdemeanor. State v. Hare, supra; State v. Spivey, supra; State v. Stephens, supra; State v. Jordan, supra.

We, therefore, are of the opinion that the portion of the holding in Parker which, without qualification, makes an attempt to commit a felony punishable as a felony is erroneous and is no longer authoritative.

We further note that this Court has held that attempted burglary, State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949), attempted common law robbery, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956), attempted armed robbery, State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964), and an attempt to commit a crime against nature, State v. Spivey, supra; State v. Mintz, 242 N.C. 761, 89 S.E.2d 463 (1955); State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965), all constitute misdemeanors which are infamous, done in secret and malice or with deceit and intent to defraud, and are punishable as felonies under G.S. 14-3(b). Also, the Court of Appeals has held that an attempt to obtain property by false pretenses is a crime done with deceit and intent to defraud, squarely within the purview of G.S. 14-3(b). State v. Page, 32 N.C.App. 478, 232 S.E.2d 460, disc. review denied, 292 N.C. 643, 235 S.E.2d 64 (1977).

We have not specifically considered whether attempted receipt of stolen property falls within the class of misdemeanors punishable under G.S. 14-3(b). We now turn to that question. In our analysis of this issue, we must bear in mind the general rule of statutory construction that criminal statutes are to be strictly construed against the State. State v. Ross, 272 N.C. 67, 157 S.E.2d 712 (1967); State v. Brown, 264 N.C. 191, 141 S.E.2d 311 (1965); State v. Jordon, 227 N.C. 579, 42 S.E.2d 674 (1947). This Court held in State v. Surles, supra, that an attempted burglary was infamous because it was an act of depravity, involving moral turpitude, revealing a heart devoid of social duties and a mind fatally bent on mischief. The Court reasoned that in light of the statute which made infamous misdemeanors punishable as felonies, the meaning of infamous must be determined with reference to the degrading nature of the offense and not the measure of punishment.

We also agree with that part of the dissent in Surles where Justice Ervin wrote:

When the Legislature used the words "done in secrecy and malice, or with deceit and intent to defraud," to describe the second and third classes of aggravated offenses included in the statute now codified as G.S. 14-3, its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud are elements necessary to their criminality as defined by law.

230 N.C. at 284, 52 S.E.2d at 888 (1949). (Ervin, J., dissenting.) We do not perceive that attempting to receive stolen property is a crime of the same degree as attempted robbery, attempted burglary and an attempt to commit a crime against nature. Nor does the crime of attempted receipt of stolen property include secrecy, malice, deceit or intent to defraud as necessary elements.

In State v. Grant, 261 N.C. 652, 135 S.E.2d 666 (1964), we held that an attempt to break and enter was a misdemeanor punishable under G.S. 14-3(a). Certainly the crime of attempted breaking and entering would more readily support a finding that it was an infamous misdemeanor than would the offense of attempting to receive stolen property. Therefore, relying on Grant, we hold that the Court of Appeals acted properly in vacating the trial judge's judgment sentencing defendant as a felon in case number 80CR52198 and remanding the case to the Superior Court of Forsyth County for punishment pursuant to G.S. 14-3(a).

By his fifth, sixth, seventh, and eighth assignments of error, defendant contends that once stolen goods have been recovered by the police, they lose their character as stolen property. Thereafter, it becomes impossible for a person to commit the crime of receiving stolen goods or attempting to receive stolen goods. He argues that in the case before us, the silver had been recovered by the police before it was purchased by defendant; that the ring had been constructively recovered by the police when Johnson offered it to them; and that since Johnson acted as their agent, the police were in constructive possession of the ring.

We first consider whether the stolen property lost its stolen character when it was recovered by the police prior to its delivery to defendant. Our research discloses no North Carolina authority decisive of the questions here presented, and we, therefore, turn to other jurisdictions of the United States for enlightenment.

The weight of authority is that once stolen property is recovered, it loses its status as stolen property. In considering a situation similar to the one before us, the court in United States v. Cohen, 274 F. 596 (3rd Cir. 1921), stated:

When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost and the subsequent delivery of the property by the owner or agent to a particeps criminis, for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime, for in a legal sense he does not receive stolen property.

274 F. at 599. Accord, United States v. Monasterski, 567 F.2d 677 (6th Cir.1977); United States v. Dove, 629 F.2d 325 (4th Cir.1980); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); Bandy v. State, 575 S.W.2d 278 (Tenn.1979); Booth v. State, 398 P.2d 863 (Okl.Cr.1964); State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975); ...

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