State v. Law

• Decision Date: 18 December 1946
• Docket Number: 721
• Citation: 40 S.E.2d 699,227 N.C. 103
• Parties: STATE v. LAW et al.
• Court: North Carolina Supreme Court

40 S.E.2d 699

227 N.C. 103

STATE v. LAW et al.

No. 721

Supreme Court of North Carolina

December 18, 1946

Criminal prosecution on indictment charging the defendants, in one count, with the larceny of an automobile, of the value of $700.00, the property of the City of Winston-Salem; and, in a second count, with receiving said automobile, of the value of $700.00, the property of the City of Winston-Salem, knowing it to have been feloniously stolen or taken in violation of G.S. s 14-71.

The record discloses that on the night of 15 April, 1946, Oscar Morrison, a police officer of the City of Winston-Salem discovered an automobile on one of the city streets from which a 5-gallon container full of non-tax-paid whiskey had just been taken and which had evidently been transported therein contrary to law. He took possession of the automobile, drove it to the city lot and parked it for the night.

The automobile was stolen from the city lot during the night, and there is evidence, circumstantial and presumptive, tending to connect the defendants with its disappearance.

The defendants offered no evidence.

Verdict Guilty as to each defendant.

Judgment: Imprisonment in the State's Prison for not less than 2 nor more than 4 years as to both defendants.

Defendants appeal, assigning errors, and relying chiefly upon their motion to nonsuit.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

William H. Boyer, Sally J. Jackson and H. Bryce Parker, all of Winston-Salem, for defendants.

STACY Chief Justice.

The question for decision is whether there is a fatal variance between the indictment and the proof. Stare decisis would seem to require an affirmative answer.

Conceding that the automobile in question, even if originally the property of one of the defendants, was the subject of larceny while in the custody of the officer who had seized it under authority of law, still it does not follow that its ownership was properly laid in the City of Winston-Salem. The City had no property right in it, special or otherwise. Only the officer who seized the property was authorized to hold it, take and approve bond for its return 'To the custody of said officer', and to hold it subject to the orders of the court. G.S. s 18-6. A conviction under the present bill would not perforce protect the defendants against another prosecution with the right to the property laid in the seizing officer or in the custody of the law. State v. Bell, 65 N.C. 313. The City of Winston-Salem, no doubt, owns a number of automobiles, such as would fit the description in the bill, but none of these was stolen. 'The object of an indictment is to inform the prisoner with what he is charged, as well to enable him to make his defense as to protect him from another prosecution for the same criminal act. ' State v. Carlson, 171 N.C. 818, 89 S.E. 30, 34.

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