State v. Massey, 259
| Decision Date | 22 May 1968 |
| Docket Number | No. 259,259 |
| Citation | 273 N.C. 721,161 S.E.2d 103 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Leroy MASSEY. |
Atty. Gen. T. Wade Bruton and Deputy Atty. Gen. James F. Bullock, for the State.
John H. Cutter, Charlotte, for defendant.
The principal question presented by this appeal is: Did the court err in failing to charge the jury as to the elements constituting larceny from the person?
Defendant was tried on a bill of indictment which charged:
'* * * That Leroy Massey late of the County of Mecklenburg on the 29th day of May, 1967, with force and arms, at and in the County aforesaid, unlawfully, willfully, and feloniously having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a pistol whereby the life of Floyd Walton was endangered and threatened, did then and there unlawfully, willfully, forcibly, violently and feloniously take, rob, steal and carry away $23.00 in lawful money of the United States, personal papers and a billfold the property of Floyd Walton on the value of less than $200.00 to wit: $48.00 from the presence, person, place of business, and residence of Lloyd Walton, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.'
The trial judge, in charging the jury, defined larceny as 'the taking and carrying away from any place at any time of the personal property of another without his consent by a person not entitled to the possession thereof, feloniously with intent to deprive the owner of his property permanently, and to convert it to the use of the taker.' And in further explanation and application of the elements involved in larceny, the court stated:
'So, to warrant the conviction of the defendant upon the charge of larceny, the State must prove beyond a reasonable doubt, from the evidence in this case, first, that at the time named in the indictment the prosecuting witness owned or possessed the personal property mentioned in the indictment; second, that the defendant knowingly took such personal property from the possession of the owner, the prosecuting witness, into his own possession and carried it away; and, third, that such taking and carrying away of such property by the defendant was by a trespass, that is, was against the will of the prosecuting witness, or at least without his consent; and, fourth, that such taking and carrying away of such property by the defendant was without any claim or pretense of right on the part of the defendant, and was with a then existing felonious intent on the part of the defendant wholly and permanently to deprive the prosecuting witness of his property to appropriate or convert the same to his, the defendant's, own use.'
At common law the stealing of property of any value was a felony, and both grand larceny and petit larceny were felonies. State v. Andrews, 246 N.C. 561, 99 S.E.2d 745. The common law distinctions between petit and grand larceny have been abolished by the ancient statute now codified as G.S. § 14--70.
G.S. § 14--72 provides:
Under the provisions of G.S. § 14--72 as amended, the larceny of property of the value of $200 or less is a misdemeanor. It is provided in the statute that the statute does not apply when 'the larceny is from the person * * *.' Thus, larceny from the person as at common law is a felony without regard to the value of the property stolen, and the punishment for larceny from the person may be for as much as ten years in State's prison. State v. Brown, 150 N.C. 867, 64 S.E. 775; State v. Acrey, 262 N.C. 90, 136 S.E.2d 201; G.S. §§ 14--1, 14--2, 14--3.
We find a full discussion of the statutory acts leading to the enactment of the present G.S. § 14--72, together with an exhaustive discussion of cases interpreting the statute, by Bobbitt, J., speaking for the Court in the case of State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.
The Act of 1895, Chapter 285, entitled 'An Act to limit the punishment in certain cases of larceny' provided in Section 1 that where the value of the property stolen did not exceed twenty dollars, the punishment for the first offense should not exceed imprisonment for a longer term than one year. This Act also contained a further proviso that 'If the larceny is from the person, * * * section one of the act shall have no application.' The various amendments to this act (which are apparent from a cursory reading and comparison of the Act of 1895, Chapter 285, and G.S. § 14--72) have not affected the crime of larceny from the person.
The definition here given by the trial judge contains all the elements necessary to constitute and accurately describe and explain the crime of larceny. State v. Booker, 250 N.C. 272, 108 S.E.2d 426; State v. Griffin, 239 N.C. 41, 79 S.E.2d 230; State v. Cameron, 223 N.C. 449, 27 S.E.2d 81.
There are cases in North Carolina which seem to hold that in indictments for larceny or crimes which include larceny as a lesser included offense, it is not essential for the State to allege in the indictment that the taking was from the person in order to support a verdict and sentence for the crime of larceny from the person. These cases place the burden on defendant to show diminution of sentence under P.L.1895, Chapter 285, or G.S. § 14--72. State v. Bynum, 117 N.C. 749, 23 S.E. 218; State v. Harris, 119 N.C. 811, 26 S.E. 148. However, later cases hold that in order for the State to convict of the felony of larceny (except in those instances where G.S. § 14--72 does not apply) the State must prove beyond a reasonable doubt that the property stolen had a value of more than $200.00. State v. Cooper, supra; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920; State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393. Further, this Court has held that where an indictment charges larceny of $200.00 or less, but does not contain allegations that the larceny was from a building by breaking and entering, the punishment cannot exceed two years in prison, even though all the evidence tends to show the larceny was accomplished by a felonious breaking and entering. State v. Bowers, 273 N.C. 652, ...
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...on appeal in the absence of manifest abuse of discretion. State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968). No abuse of discretion is shown. A motion in arrest of judgment is one made after verdict and is based upon the insufficien......
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...of larceny as is usually done, the objection seems to be without merit. State v. Bynum, 117 N.C. 749, 23 S.E. 218.' In State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968), the defendant was indicted for robbery with firearms from the person of one Floyd Walton. He was found guilty of larce......
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...argument is unfounded. The trial judge acted within his discretion, and there was absolutely no abuse of this discretion. State v. Massey, 273 N.C. 721, 161 S.E.2d 103. The sixth contention of the defendant is without This was a difficult and emotional case, and it is apparent that the tria......