State v. Ray
| Decision Date | 08 April 1936 |
| Docket Number | 289. |
| Citation | 184 S.E. 836,209 N.C. 772 |
| Parties | STATE v. RAY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Small, Judge.
Garvey Ray and others were indicted for breaking and entering a freight car, larceny of cigarettes, and receiving stolen cigarettes, and Garvey Ray was convicted of receiving stolen cigarettes, and he appeals.
No error.
Allen J. Honeycutt, Garvey Ray, Emanuel Crump, John Dunbar, and James Hinton were placed upon trial upon a three-count bill of indictment charging that they, on or about the 5th day of April, 1935, in the county of Pitt, (1) feloniously broke and entered freight car No. 20635 of the Norfolk Southern Railroad Company with the intent to commit a felony therein (2) committed larceny of several cases of cigarettes consigned to Sea Stores Warehouse No. 2, district of Maryland; and (3) feloniously received several cases of cigarettes of the value of $500, which had been in the custody of the Norfolk Southern Railroad Company for the purpose of transportation, then and there well knowing that said cigarettes had been stolen. A verdict of not guilty was entered as to the defendants Honeycutt and Ray upon the first and second counts, and as to them the jury returned a verdict of guilty upon the third count. The other defendants in the course of the trial entered a general plea of guilty, and were used as state's witnesses. From judgment pronounced the defendant Garvey Ray alone perfected appeal to the Supreme Court.
The evidence introduced by the state, as it relates to the appellant, Ray, tended to show that twenty cases of Lucky Strike cigarettes were loaded on Norfolk Southern freight car No. 20635, at Durham, on April 4, 1935, and that these cigarettes were consigned to "Sea Stores," since they were not for consumption in this country but for use on the water, and contained no government revenue stamps; that said car was routed to Berkeley, Va., and on April 5, 1935 at Greenville, one Boston McNeill and the codefendants Dunbar, Hinton, and Crump broke and entered the car and threw out some of the cigarettes near Greenville in Pitt county and some of them at Marsden in Beaufort county; that Dunbar Hinton, and Crump came to Wake county and told Honeycutt that they had the cigarettes, whereupon Honeycutt took them to the home of the appellant, Ray, his son-in-law, and there Ray made arrangements for his truck, driven by his brother, to take them back to Greenville and Marsden to get the cigarettes; that they got the cigarettes at Marsden, but were unable to find those near Greenville; that they brought the cigarettes in the truck of the appellant, Ray, to his filling station in Wake county, and the appellant then and there took charge of the truck and of the cigarettes therein; and that on the following day at the "regular meeting place" and "regular pay off place" on Peace street, in the city of Raleigh, the defendant Honeycutt, in the presence of the appellant, Ray, paid them $48 for five cases of Lucky Strike cigarettes, and stated, also in the presence of the appellant, that he could not pay more because the cigarettes had gotten soiled and wet, and that on the next trip he wanted some Camels.
There was further evidence by the state, admitted over the objection of the appellant, which tended to show that in March, 1935, the appellant, Ray, went with one Boston McNeill and some of the codefendants to Youngsville, in Franklin county, and there loaded on his truck and hauled to his place of business in Wake county twenty-six cases of Chesterfield cigarettes, which said McNeill and others had thrown out of a car of the Seaboard Air Line Railway Company; and, also, tending to prove that on April 8 and 15, 1935, there were obtained from the place of business of the appellant, Ray, on the Wake Forest road, in Wake county, four cases of Camels and Chesterfield cigarettes, upon which there were no consignee marks, and from some of which it appeared consignee marks had been removed.
The evidence introduced by the appellant tended to show that he was in Florida on April 5 and 6, 1935; that he left his home in Wake county in an automobile on March 29, 1935, for Arcadia, Fla., to drive some friends to attend a funeral of a kinsman who had died the preceding day; that he left Arcadia, Fla., on the 7th day of April and arrived at Raleigh about 2 o'clock p. m. on April 9th. The appellant also introduced evidence tending to show that his wife had purchased Camel and Chesterfield cigarettes from a man in a truck.
Where it becomes necessary to prove guilty knowledge of accused, evidence of similar independent offenses committed by accused is competent to show such knowledge, whether independent offenses occurred prior to or subsequent to offense for which accused is being prosecuted.
Charge defining the offense and informing jury that accused was presumed innocent until proven guilty beyond reasonable doubt, which defined "reasonable doubt," and informed jury that if it had reasonable doubt as to whether accused received the property and knew it was stolen, jury should find accused not guilty held sufficient instruction that burden of proof was on state.
Ellis Nassif and Douglass & Douglass, all of Raleigh, for appellant.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
Upon the close of the evidence the appellant moved the court to "quash the indictment" for the reason that he could not be tried in Pitt county, since all of the evidence tended to show that the property involved, if stolen, was stolen in Beaufort county, and if received by him was received by him in Wake county. The motion was denied by the court and such denial is made the basis of exceptive assignments of error. The assignments cannot be sustained.
In order to sustain a conviction, it is not necessary for the state to prove that the crime occurred in the county where the indictment is drawn, as, since the act of 1844, "in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement." C.S. § 4606. State v. Outerbridge, 82 N.C. 617, 618. "Indeed, the offense, if proven, 'shall be deemed and taken' as having been committed in the county laid in the charge, unless...
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