State v. Parker
Decision Date | 11 October 1944 |
Docket Number | 218. |
Citation | 31 S.E.2d 531,224 N.C. 524 |
Parties | STATE v. PARKER. |
Court | North Carolina Supreme Court |
Criminal prosecution under a bill of indictment charging 'larceny and receiving' of one barrel of molasses.
There was no evidence that these defendants stole the barrel of molasses described in the bill. The evidence offered was submitted to the jury on the second count and on the lesser offense of attempt to commit the felony charged. The jury returned the verdict: 'Guilty of an attempt to feloniously receive stolen property knowing that the same had been stolen.' There was judgment on the verdict and defendants appealed.
Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.
Claude C. Canaday, of Benson, for defendant appellant Clarence Parker.
J R. Barefoot, of Benson, for defendant appellant Edward Tart.
An attempt to commit a crime is an indictable offense, and as a matter of form and on proper evidence, in this jurisdiction a conviction may be sustained on a bill of indictment making the specific charge, or one which charges a completed offense. G.S. § 15-170, C.S. § 4640; State v Colvin, 90 N.C. 717, 718; State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; State v. Carivey, 190 N.C. 319, 129 S.E. 802; State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614. While this is conceded, defendants insist that their demurrers to the evidence under G.S. 15-173, C.S. § 4643, should have been sustained.
An unlawful attempt to feloniously receive stolen property, knowing it to have been stolen, is composed of two essential elements: (1) Guilty knowledge at the time that the property had been stolen, State v. Spaulding, 211 N.C. 63, 188 S.E. 647, State v. Morrison, 207 N.C. 804, 178 S.E. 562, State v. Batson, supra; and (2) the commission of some overt act with the intent to commit the major offense. State v. Addor, supra, State v. Batson, supra.
It is an overt act in part execution of a criminal design which falls short of actual commission but which goes beyond mere preparation to commit. State v. Addor, supra, State v. Carivey, supra, State v. Batson, supra.
Consideration of the evidence offered in the light most favorable to the State leads us to the conclusion that there was evidence of each constituent element of the crime of which defendants were convicted, sufficient in probative force to sustain the finding and verdict of the jury.
Two young men, strangers to defendants, stole a barrel of molasses, carried it to the pasture of one McLamb, and concealed it in a bunch of gum trees inside the pasture, and covered it with hay and green limbs. They approached defendants who agreed to buy. They arranged to go in the night time to...
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