State v. McCullough, 788SC772

• Citation: 253 S.E.2d 274,40 N.C.App. 620
• Decision Date: 03 April 1979
• Docket Number: No. 788SC772,788SC772
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Sam McCULLOUGH.

Page 274

253 S.E.2d 274 40 N.C.App. 620 STATE of North Carolina
v.
Sam McCULLOUGH. No. 788SC772. Court of Appeals of North Carolina. April 3, 1979.

Hulse & Hulse by Herbert B. Hulse, Goldsboro, for defendant-appellant.

Page 275

WEBB, Judge.

The defendant's first two assignments of error deal with the failure of the court to grant his motions for nonsuit. He argues that the evidence shows that his only reason for entering the building was to find shelter from the inclement weather and that the moving of the canned goods was insufficient to establish asportation. In order to support a finding of asportation it is not necessary that the personal property be removed from the premises. "The least removal of an article, from the actual or constructive possession of the owner, so as to be under the control of the felon, will be a sufficient asportation." State v. Walker, 6 N.C.App.[40 N.C.App. 622] 740, 743, 171 S.E.2d 91, 93 (1969). We hold there was sufficient evidence in the light most favorable to the State for the jury to find the defendant carried away the property. This being so, there was sufficient evidence for the jury to find that at the time of the entering the defendant intended to commit larceny. The motions for nonsuit were properly overruled in both cases.

The defendant's next assignments of error are to the charge. In the charge as to larceny after a breaking or entering, Judge Allsbrook charged the jury that they must be satisfied of five things beyond a reasonable doubt in order to convict the defendant of felonious larceny. He enumerated five elements of the crime and then said the sixth thing the jury must find is that the property was taken from a building after a breaking or entering. The defendant contends the court failed to charge the jury that they must be satisfied beyond a reasonable doubt that the property was taken after a breaking or entering in order to convict the defendant of felonious larceny. In his final mandate, Judge Allsbrook charged the jury they must be satisfied beyond a reasonable doubt that the property was taken after a breaking or entering to find the defendant guilty. At another place in the charge Judge Allsbrook instructed the jury that they must be satisfied beyond a reasonable doubt as to every element of the crime in order to find the defendant guilty. Reading the charge as a whole, we believe Judge Allsbrook properly charged the jury as to the State's burden of proof as to the taking after...