State v. Perkins, 8118SC1179

• Citation: 57 N.C.App. 516,291 S.E.2d 865
• Decision Date: 01 June 1982
• Docket Number: No. 8118SC1179,8118SC1179
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Archie Allen PERKINS, Jr.

Page 865

291 S.E.2d 865

57 N.C.App. 516

STATE of North Carolina v. Archie Allen PERKINS, Jr.

No. 8118SC1179.

Court of Appeals of North Carolina.

June 1, 1982.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., James E. Magner Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant-appellant.

HILL, Judge.

The State's evidence tends to show that on the morning of 16 January 1981, the physical and aquatics director for the Hayes-Taylor YMCA in Greensboro, Clarence Robinson, Jr., came in early to clean up and found the building "in a disorderly fashion." Subsequently, he discovered that certain items were missing from the YMCA. Robinson testified that all the missing items "were not under my direct custody and control. Yes, some of the items I mentioned were taken from various parts of the YMCA." Although he did not present documents to show that the missing items were present at the YMCA and belonged to the YMCA, Robinson stated that he "used all of these items in [his] work at the YMCA."

Cheyenne Henryhand testified that he was present when defendant entered the YMCA building through an open window. He stated, "After [defendant] went in the window, he came down there and opened the door and I went in." The two thereafter plundered the building. Defendant presented no evidence.

On appeal, pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, defendant argues that the count in the indictment charging him with larceny is fatally defective because it "fails to allege ownership of the property taken either in a natural person or a legal entity capable of owning property ...."

"An indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective." State v. Roberts, 14 N.C.App. 648, 649, 188 S.E.2d 610, 611 (1972). Accord State v. Thompson, 6 N.C.App. 64, 169 S.E.2d 241 (1969). The indictment in the present case, quoted in pertinent part above, does not allege that "Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch" is a corporation or other legal entity capable of owning property; nor does the name indicate that it is a corporation, nor does it indicate a natural person. See State v. Roberts, supra; State v. Thompson, supra. Therefore, the larceny count in this indictment is fatally defective. The remainder of our opinion is directed to the breaking and entering count of the indictment.

In his second argument, defendant contends that the trial judge erred in failing to grant his motion for a continuance in order to secure the presence of his alibi witnesses.

It is well established that a motion to continue is ordinarily addressed to the trial judge's sound discretion and his ruling thereon will not be disturbed except upon a showing that he abused that discretion. [Citations omitted.] However, when a motion to continue is based on a constitutional right, the question presented is a reviewable question of law.

State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). Since the right to present one's defense is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, the denial of defendant's motion in this case presents a constitutional question.

Here, defendant's counsel had subpoenaed four persons--defendant's three sisters and his girlfriend--on behalf of defendant for the preceding week, when this case originally was calendared for trial. Although they were not located, the potential witnesses told defendant they would visit him in jail the afternoon of the day the case was called for trial. The trial judge ordered the bailiff to "call the jail and tell that if the people come inquiring of [defendant] to send them over here to the courthouse immediately," and denied defendant's motion. Defendant's counsel wrote to the potential witnesses and investigated their whereabouts through the public defender's office to no avail.

Other than characterizing them as "alibi" witnesses, defendant has not shown what the potential witnesses' testimony would be, nor has defendant shown how the lack of such testimony would be prejudicial to him. In addition, there is no evidence that defendant's sisters and girlfriend would ever be present for trial. See State v. Davis, 38 N.C.App. 672, 248 S.E.2d 883 (1978). We conclude that under these circumstances, and since defendant's counsel subpoenaed the potential witnesses for the preceding week and still was unable to locate them when the case was called for trial despite the additional efforts of the trial judge, denial of the motion for a continuance was not error. This assignment of error is overruled.

In his next argument, defendant contends that the trial judge erred in refusing to reopen the case at his request. After the judge had concluded his charge to the jury, defendant's counsel informed the judge that he had conferred with defendant while the prosecutor was arguing to the jury and defendant then expressed a desire to testify. Defendant addressed the trial judge as follows:

See, Your Honor, at the time this happened, I had gotten the bus ticket the 10th of January and left the 14th and came back on the 17th. And that Sunday morning the police came in threatening me, talking about they are going to shoot if I didn't open the door, and a whole lot of my rights have been violated.

Defendant's counsel thereafter moved for a mistrial, which was denied.

It is well settled that ruling on a motion for mistrial in a criminal case rests largely in the trial judge's discretion. State v. McCraw, 300 N.C. 610, 268 S.E.2d 173 (1980); State v. Mills, 39...