State v. McCrary, 229
| Decision Date | 15 January 1965 |
| Docket Number | No. 229,229 |
| Citation | 139 S.E.2d 739,263 N.C. 490 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Charlie McCRARY. |
Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.
Lila Bellar, Charlotte, for defendant appellant.
The testimony of Earl Jones Eudy, the State's principal witness, tends to show the matters set forth in the following numbered paragraphs.
1. Eudy owned a 1954 Ford. Its fair market value was approximately $300.00.
2. Morgan and Eudy are first cousins. Morgan and McCrary lived together, with McCrary's mother, in the Roberta community of Cabarrus County, some five miles from Concord.
3. On July 7, 1964, about 2:30 p. m., Eudy drove his Ford to defendants' house. Then, accompanied by defendants, he drove to Concord where Morgan registered 'for the Army.' They returned to defendants' house.
4. Thereafter, with Eudy driving, they went first to Concord and later to Charlotte for McCrary to pawn a radio. The radio was pawned by McCrary in Charlotte. McCrary bought one dollar's worth of gasoline. They returned to defendants' house and stayed 'around there until 9:00 o'clock.'
5. Thereafter, they 'went out on Newell Road,' and bought 'six or eight beers.' McCrary said he wanted to buy a pig. Thereupon, they went to the farm of Eudy's father, looked at pigs, drank beer and 'sat around there and talked.'
6. When they 'started back up towards' Eudy's car, defendants said they wanted to go to Charlotte again. Eudy said he did not have enough gas and did not want to drive his car out on the road 'after drinking that beer.' Whereupon McCrary picked up a stick, hit Eudy on the back of his head and knocked him down twice. Morgan jumped in the car, started it, then McCrary jumped in and 'they took off.'
7. A few hours later Eudy, accompanied by a brother, set out in search of his car. Eudy testified: 'We went toward Roberta and before we got to Roberta they had run out of gas and they had parked it beside the road, pulled it off in the field, and we went on up to Charlie McCrary's house and turned around in his driveway and come back to the car and raised the hood and took the coil wire off of it.' The next day, Eudy's car was parked in McCrary's yard. Eudy 'went up and got it.'
Defendants' evidence is in conflict with Eudy's testimony in many respects as to incidents occurring while the three were together during the afternoon and evening of July 7th. Their testimony tends to show Eudy got drunk and abandoned his car. Further consideration of defendants' testimony is unnecessary to decision on this appeal.
Whether this prosecution was subject to dismissal as of nonsuit is not presented by appellant's assignments of error. Appellant seeks a new trial, assigning as error, inter alia, designated portions of the court's instructions to the jury.
'Larceny, according to the common-law meaning of the term, may be defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use.' (Our italics.) U Drive It Auto Co. v. Atlantic Fire Insurance Co., 239 N.C. 416, 418, 80 S.E.2d 35, 37, and cases cited; State v. Booker, 250 N.C. 272, 108 S.E.2d 426; 32 Am.Jur., Larceny § 2, § 37; 52 C.J.S. Larceny § 1, § 27.
Felonious intent is an essential element of the crime of larceny. State v Kirkland, 178 N.C. 810, 101 S.E. 560; State v. Delk, 212 N.C. 631, 194 S.E. 94; State v. Friddle, 223 N.C. 258, 25 S.E.2d 751. 'What is meant by felonious intent is a question for the court to explain to the jury, and whether it is present at any particular time is for the jury to say.' State v. Coy, 119 N.C. 901, 903, 26 S.E. 120, 121. An error prejudicial to defendant in instructions as to felonious intent is ground for a new trial. State v. Kirkland, supra.
The following is from the opinion of Allen, J., in State v. Kirkland, supra: 'In 17 R.C.L. 5, one of the latest authorities and reliable, defines larceny 'as the felonious taking by trespass and carrying away of the goods of another, without the consent of the latter, and with the felonious intent permanently to deprive the owner of his property and to convert it to his (the taker's) own use,' a definition following the decisions in our state, and which we...
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Joiner v. Revco Discount Drug Centers, Inc.
...the owner thereof . . . . Intent to commit the crime of larceny is not an element of the crime of larceny.") (citing State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965))). Therefore, CVS ultimately furnished true information to a consumer reporting agency, which prevents Joiner from bring......
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State v. Andrews
...defendant knew he was not entitled to take the property; and (6) the property was valued at more than $400.00. See State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965); N.C.Gen.Stat. 14-72(a), 1979 Supp.; N.C.P.I. Crim. 216.10. An examination of the elements of both offenses reveals the pr......
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Smith v. State
...the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use." State v. McCrary, 263 N.C. 490, 492, 139 S.E.2d 739, 740 (1965). G.S. 14-72 provides that the larceny of property having a value of more than $400.00 is deemed a felony. Armed ro......
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State v. Long
...with the felonious intent to deprive the owner of his property permanently and to convert it to the use of the taker. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965). 'The taking must be done Animo furandi, with a felonious intent to appropriate the goods taken to some use or purpose ......