State v. Upchurch, 499

• Decision Date: 28 April 1965
• Docket Number: No. 499,499
• Citation: 264 N.C. 343,141 S.E.2d 528
• Court: North Carolina Supreme Court
• Parties: STATE, v. J. G. UPCHURCH.

Page 528

141 S.E.2d 528

264 N.C. 343

STATE, v. J. G. UPCHURCH.

No. 499.

Supreme Court of North Carolina.

April 28, 1965.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Charles W. barbee, Jr., for the State.

Yarborough, Blanchard & Tucker, Raleigh, for defendant appellant.

PER CURIAM.

Defendant assigns as error the denial of his motion to arrest judgment. His contention is that the indictment is fatally defective, in that it does not allege the brand names of the cigarettes, beer, and sardines. The indictment alleges the ownership of the 30 cartons of cigarettes, the 20 cases of beer, and the one case of sardines stolen, and their value. This was a sufficient description to apprise defendant as to the property he was charged with having received, and no minute description of the cigarettes, beer, and sardines by brand names is required. The description of these goods in the indictment is sufficient to support the judgment and precise enough so that a judgment under the indictment could be used as a bar to any subsequent prosecution. If defendant desired a description of the brand names of these goods, he could have requested before trial a bill of particulars. State v. Kosky, 191 Mo. 1, 90 S.W. 454, and cases cited on this question; State v. Smith, 250 Mo. 350, 157 S.W. 319; Alvarez v. State, 75 Fla. 286, 78 So. 272; Annot. 99 A.L.R.2d 813, § 21 Food and Drink, § 22 Chemicals and Drugs, § 23 Tobacco and Tobacco Products; 4 Wharton's Criminal Law and Procedure, Anderson ed., § 1782, particularly p. 599; 27 Am.Jur., Indictments and Informations, § 83. There is contrary authority as shown in the A.L.R. annotation in the sections here referred to. See also State v. Moore, 129 N.C. 494, 39 S.E. 626, 55 L.R.A. 96, wherein it was held that an indictment which charged the defendant with receiving various types of goods, including 'tobacco,' was not defective for failing to state the quantity of the various articles, such as the number of boxes of tobacco. This assignment of error is overruled.

Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of the State's evidence: defendant offered no evidence. The State's evidence, considered in the light most favorable to it, State v. Corl, 250 N.C. 252, 108 S.E.2d 608, shows the following facts: In August 1963 James Keith operated Hillcrest Service Station, which was located just beyond the Falls of Neuse on old U. S. Highway #1 in Wake County. On either late Friday night, 2 August 1963, or early on Saturday morning, 3 August 1963, he closed his service station and went home. He returned to it about 8:30 or 9:00 a. m. on Saturday, 3 August 1963, and found that one of its doors had been broken open, or at least its padlock had been prized off, and that 30 cartons of cigarettes of different brands, 23 cases of beer of five different brands, and canned goods, all belonging to him and which were in his service station the night before, had been stolen, taken and carried away.

Russell Wayne Perry, a witness for the State, testified in substance, except when quoted, as follows: About 3:00 a. m. on 3 August 1963 he drove an automobile to James Keith's Hillcrest Service Station. Charles May and Zeb Perry were in the car with him. Upon arrival at the service station, May and Perry got out of the car and he remained in it. They had a crowbar and screwdriver, which they used to get through the garage door at the service station. They brought out of the service station 30 cartons of cigarettes, 23 cases of beer, a case of sardines, and other merchandise, some of which they put in the trunk of the car and some in the back seat. With all three of them in the car, he drove it toward Bunn in Franklin County, and arrived at defendant's home in Franklin County about 4:30 in the morning. He knocked at defendant's door and told him they had some stuff for him. Defendant told them he would be at his store about 6 a. m., and for them to go there. They went to defendant's store about fifteen minutes of six and the defendant was there. Defendant asked him what he had, and he told him. He testified: 'The defendant Upchurch asked if we got it from anywhere close by, and we told him no, not from anywhere close by.' Defendant bought from them the 20 cartons of cigarettes at $1 a carton, and 20 cases of beer at $2.50 per case, property which they had stolen from James Keith's service station. He, May, and Perry kept three cases of beer for themselves. The case of sardines and the other merchandise they carried to an old house located between Wake Forest and Youngsville. The cartons of cigarettes they sold to defendant consisted of Winstons, Pall Malls, Camels, Luckies, Salems and Viceroys, and the cases of beer they sold to defendant consisted of Schlitz, Budweiser, Blue Ribbon, and Pilot. After defendant paid them for the cartons of cigarettes and cases of beer, they unloaded them from the car and carried them into the back room of his store where the defendant wanted them put. Prior to this date he had had other dealings with the defendant. About 15 or 16 June 1963 they sold defendant 65 cartons of cigarettes which they had stolen from C. N. Robertson's store on the road to Wendell for $1 a carton. About 24 June 1963 he sold to defendant 65...