State v. Tessnear, 2
| Decision Date | 01 March 1961 |
| Docket Number | No. 2,2 |
| Citation | 254 N.C. 211,118 S.E.2d 393 |
| Parties | STATE, v. Max TESSNEAR. |
| Court | North Carolina Supreme Court |
T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for the State.
Hamrick & Hamrick, Rutherfordton, for defendant appellant.
At the outset defendant contends and urges that the trial court erred in denying his motion to quash the bill of indictment, and in arrest of judgment, for that the bill contains no definite reference to the time the alleged crime was committed. In this connection, while it is true that the bill of indictment here contains no such date, this Court has uniformly held that when time is not of the essence of the offense leaving out the date does not make it defective. See State v. Peters, 107 N.C. 876, 12 S.E. 74; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745.
The crime of receiving stolen goods is not one of the offenses in which time is of the essence, G.S. § 15-153 and G.S. § 15-155. Indeed, as said by Avery, J., in State v. Shade, 115 N.C. 757, 20 S.E. 537, 'Where the defendant thinks an indictment * * * fails to impart information sufficiently specific as to the nature of the charge, he may before trial, move the court to order that a bill of particulars be filed; and the court will not arrest the judgment after verdict, where he attempts to reserve his fire until he takes first the chance of acquittal.' Error here is not made to appear.
The defendant contends next that the trial court erred in refusing to grant his motion for nonsuit at the close of all the evidence. On such a motion the evidence is to be taken in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. On such a motion the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State's evidence. It may be used to explain or make clear that which has been offered by the State. The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to a jury. See State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Smith, 237 N.C. 1, 74 S.E.2d 291.
There is evidence in the record tending to show that after the goods were taken from the Harrill store, the defendant bought them from persons responsible for the larceny, but not concerned in this appeal, and remarked, 'You must have pulled a hot job somewhere,' and that the value of the items taken from the Harrill store was $163.50. Therefore, applying the rule stated above, the defendant's motion for nonsuit was properly overruled. State v. Yow, 227 N.C. 585, 42 S.E.2d 661; State v. Brady, 237 N.C. 675, 75 S.E.2d 791.
However defendant next contends, and rightly so, that the trial court erred in its charge in that it did not...
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State v. Massey, 259
...stolen had a value of more than $200.00. State v. Cooper, supra; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920; State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393. Further, this Court has held that where an indictment charges larceny of $200.00 or less, but does not contain allegations that ......
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State v. Price, 397A83
...an indictment may not be quashed for failure to allege the specific date on which the crime was committed. See State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393 (1961); State v. Andrews, 246 N.C. 561, 99 S.E.2d 745 (1957). This holding is in accord with N.C.Gen.Stat. § 15-155, which provides ......
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State v. Hicks, 254A86
...Effler, 309 N.C. 742, 749, 309 S.E.2d 203, 207 (1983). See also State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962); State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393 (1961). This policy of leniency as to the time of the offenses stated in an indictment governs so long as the defendant is not ......
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State v. Orr, 2
...at that time.' In passing on the motion to dismiss, we must view the evidence in the light most favorable to the State. State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393; State v. Gay, 251 N.C. 78, 110 S.E.2d 458. The credibility of witnesses and the proper weight to be given their testimony ......