State v. Schultz

• Decision Date: 24 January 1978
• Docket Number: No. 120,120
• Citation: 294 N.C. 281,240 S.E.2d 451
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. George Eugene SCHULTZ.

Page 451

240 S.E.2d 451

294 N.C. 281

STATE of North Carolina v. George Eugene SCHULTZ.

No. 120.

Supreme Court of North Carolina.

Jan. 24, 1978.

Rufus L. Edmisten, Atty. Gen., by Patricia B. Hodulik, Associate Atty., Raleigh, for the State.

Max O. Cogburn, Jr., Asheville, for defendant.

LAKE, Justice.

The defendant's assignment of error directed to the charge of the court is without merit. Standing alone, the paragraph to which he excepts is not a model of clarity and, perhaps, the jury might have concluded therefrom that if it found, from the evidence and beyond a reasonable doubt that on either of the times in question the defendant, acting alone or with his alleged associates, took and carried away the property of the cemetery without authority and with the requisite intent, and such property was worth more than $200.00, it should return a verdict of guilty of felonious larceny in all three cases. However, portions of a charge to the jury must be read contextually. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765 (1970).

The entire charge was relatively short. Immediately after the paragraph to which the defendant excepts, the court said:

"Now in this case you may return one of two verdicts in each case. You may return a verdict of guilty of felonious larceny or not guilty with respect to each of the three cases, which, as I told you earlier, you will consider as separate and distinct cases."

At the outset of the charge, the court said:

"Now, ladies and gentlemen of the jury, each bill of indictment charges a separate and distinct offense. You must decide upon each bill of indictment separately on the evidence and the law applicable to it uninfluenced by your decision as to any other bill of indictment. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each charge must be stated in a separate verdict."

In at least two other portions of this brief charge, the court clearly stated that the State must prove beyond a reasonable doubt the elements of felonious larceny "in each case" and that the jury must consider the evidence of the defendant's possession of the stolen urns or vases, soon after they were stolen and under circumstances such as to make it unlikely that he obtained possession of them honestly, in deciding whether or not the defendant is "guilty of larceny in any of these cases."

The defendant is correct in saying that when, in his charge to the jury, the trial judge makes conflicting statements of law, one correct and the other incorrect, a new trial must be granted since the jury cannot be expected to know which of the two conflicting instructions is correct and it cannot be determined which of the instructions it followed. State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976). This well established rule has no application to this case, however, since here the complaint is not of two inconsistent statements of the law but is simply that in one portion of the charge the court did not state with clarity that the three separate cases must be determined separately by the jury. That confusion, assuming it to exist, was completely clarified in the other portions of the charge. We agree with the majority of the Court of Appeals that it is inconceivable that the jury was confused as to the necessity for its separate consideration and determination of the three charges against the defendant in this case.

The defendant's motion for judgment of nonsuit should have been granted if, as he contends, the evidence is not sufficient to support a verdict of guilty of the offense charged in the indictment. State v. Jackson, 218 N.C. 373, 11 S.E.2d 149 (1940). Each of the indictments upon which he was tried charges him with common law larceny of the "personal property" of the cemetery corporation. The evidence was that the urns or vases, taken by the defendant, were not owned by the cemetery corporation but were the property of the persons who had purchased from it the burial lots, the grave markers and the urns or vases, the cemetery corporation having only the custody of them.

"If the proof shows that the article stolen was not the property of the person alleged in the indictment to be the owner of it, the variance is fatal and a motion for judgment of nonsuit should be allowed." State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972). Accord: State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972); State v. Thompson, 280 N.C. 202, 216, 185 S.E.2d 666 (1972); State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946). It is however, sufficient if the person alleged in the indictment to be the owner has a special property interest, such as that of a bailee or a custodian. State v. Hauser, 183 N.C. 769, 111 S.E. 349 (1922); State v. Allen, 103 N.C. 433, 9 S.E. 626 (1889).

Thus, in respect to the ownership of the property taken by the defendant, there was no fatal variance between the indictment and the proof. The defendant does not contend to the contrary. His contention is that the urns or vases were so attached to the realty as to make them part thereof, or chattels real, and, therefore, not a subject of common law larceny and that this variance between the indictments and the proof is fatal.

In State v. Jackson, supra, this Court, speaking through Justice Barnhill, later Chief Justice, said:

"Larceny at common law was confined to 'goods and chattels'; it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof. State v. Burrows, 33 N.C. 477; 36 C.J., 736, sec. 6. It, as a common law offense, is concerned with personal property only, and its nature has not been altered by the statutes making it larceny to steal things affixed to realty and severed therefrom by the thief. 36 C.J., 736, sec. 6. Therefore, it was not larceny at common law to steal anything adhering to the soil. State v. Burrows, supra ; 17 R.C.L. 33." 218 N.C. at 375, 11 S.E.2d at 150.

In the Jackson case, the defendant was indicted for common law larceny of a tombstone. The evidence was that, without the knowledge or consent of the widow of...