State v. Jessup, 7117SC125

• Decision Date: 24 February 1971
• Docket Number: No. 7117SC125,7117SC125
• Citation: 179 S.E.2d 187,10 N.C.App. 503
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. William S. JESSUP.

Page 187

179 S.E.2d 187

10 N.C.App. 503

STATE of North Carolina v. William S. JESSUP.

No. 7117SC125.

Court of Appeals of North Carolina.

Feb. 24, 1971 Certiorari Allowed by Supreme Court April 6, 1971

Atty. Gen. Robert Morgan, Asst. Attys. Gen. William W. Melvin and T. Buie Costen for the State.

Hatfield, Allman & Hall, by Roy G. Hall, Jr., and James W. Armentrout, Jr., Winston-Salem, for defendant appellant.

HEDRICK, Judge.

Assignments of error one and eight present the question of whether the allegation in the bill of indictment properly laid the ownership of the subject of the larceny, $20,100, in the 'estate of W. M. Jessup, deceased.' A proper bill of indictment for larceny must allege the ownership of the property stolen. State v. McKoy, 265 N.C. 380, 144 S.E.2d 46 (1965); 5 Strong, N.C. Index 2d, Larceny, § 4.

Personal property is said to vest in the executor or administrator upon the decedent's death. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963); Allen v. Currie, Commissioner of Revenue, 254 N.C. 636, 119 S.E.2d 917 (1961). Obviously, title does not remain in the deceased since a deceased person cannot own property (Lawson v. State, 68 Ga.App. 830, 24 S.E.2d 326 (1943)), nor do the heirs or legatees own or have any right to the possession of the personal property until the estate is administered. Spivey v. Godfrey, Supra; 1 Wiggins, North Carolina Wills, Executors and Administrators, § 215.

It has been held that ownership should be laid in the executor or administrator, even though the theft occurred before his qualification or appointment. Nelson v. People, 111 Colo. 434, 142 P.2d 388; Lawson v. State, Supra. We hold that when the larceny occurs after the death, but before a personal representative is appointed or qualified, then it is proper to allege title or ownership in the estate of the decedent. Edwards v. State, 162 Tex.Cr. 390, 286 S.W.2d 157 (1956). Otherwise, there is a hiatus in the law where thieves might work their mischief with impunity.

There is sufficient evidence in this record from which it may be inferred that W. M. Jessup owned and kept in the parkhouse near his residence more than $20,000 in one hundred dollar bills, and that the defendant stole the money after his father's death in the early morning of 12 October 1967. The court correctly denied the defendant's motion for judgment as of nonsuit and his motion in arrest of judgment.

Assignments of error there, four and five raise the question of whether the court committed prejudicial error in allowing the highway patrolman to testify in the presence of the jury that he stopped the defendant approximately eleven months after the larceny and charged him with driving an automobile while under the influence of an intoxicant, and that he searched the car and found 201 one hundred dollar bills. The defendant does not challenge the validity of the search, nor does he contend that the evidence regarding the 201 one hundred dollar bills was the fruit of an illegal search. The defendant argues that the court committed prejudicial error by not having the officer examined in the absence of the jury concerning the facts connected with the search. The defendant objected generally to the testimony of the officer. We are cited by the defendant to recent decisions in which it is held that a Voir dire is 'proper procedure' to determine if the fruits of a questionable search may be admitted. State v. Basden, 8 N.C.App. 401, 174 S.E.2d 613 (1970); State v. Fowler, 3 N.C.App. 17, 164 S.E.2d 14 (1968). Conceding that a Voir dire would have been proper procedure in the instant case, we do not think that the failure to conduct such an examination in the absence of the jury was in and of itself prejudicial. Whether it was error for the court not to have conducted an examination of the officer in the absence of the jury is detemined by whether the jury was permitted to hear incompetent and prejudicial testimony while the court was determining the validity of the search.

The defendant argues that he was prejudiced by the court's allowing the officer to testify that he stopped and arrested the defendant for driving under the influence, and that he...