State v. Whitley

• Decision Date: 01 November 1935
• Docket Number: Nos. 365, 366, 370.,s. 365, 366, 370.
• Parties: STATE. v. WHITLEY. SAME. v. ALLMAN. SAME. v. COOK.
• Court: North Carolina Supreme Court

182 S.E. 338
208 N.C. 661

STATE.
v.
WHITLEY.
SAME.
v.
ALLMAN.
SAME.
v.
COOK.

Nos. 365, 366, 370.

Supreme Court of North Carolina.

Nov. 1, 1935.

Appeal from Superior Court, Cabarrus County; H. Hoyle Sink, Judge.

John Allman was convicted of larceny, and A. W. Whitley and R. M. Cook were convicted of receiving stolen goods, knowing them to have been stolen, and they appeal.

No error.

[182 S.E. 339]

Criminal prosecution tried upon indictment charging the defendants, A. W. Whitley, John Allman, R. M. Cook, and five others (1) with the larceny of bath towels, bed sheets, pillow cases, and wash cloths, of the value of $200, the property of Cannon Mills Company; and (2) with feloniously receiving said towels, sheets, etc., knowing them to have been feloniously stolen or taken in violation of C. S. § 4250.

The state's evidence tends to show that some of the defendants were engaged in a systematic looting of manufactured articles from one of the plants of the Cannon Mills Company at Kannapolis, N. C, and disposing of such stolen articles to the remaining defendants and others for gain.

The defendant John Allman was convicted on the first count of the larceny of said goods and chattels, while the defendants A. W. Whitley and R. M. Cook were convicted on the second count of receiving stolen goods knowing them to have been stolen. None of the remaining five defendants appealed. They were either acquitted, convicted, or entered pleas of guilty or nolo contendere.

Judgment as to A. W. Whitley: Imprisonment in the state's prison for not less than 3 nor more than 5 years.

Judgment as to John Allman: Imprisonment in the state's prison for not less than 5 nor more than 7 years.

Judgment as to R. M. Cook: Imprisonment in the state's prison for not less than 2 nor more than 3 years.

The three named defendants filed separate appeals, though tried together, each assigning errors.

Brooks, McLendon & Holderness, of Greensboro, and Armfield, Sherrin & Earnhardt, of Concord, for appellant Whitley.

Woodson & Woodson, of Salisbury, for appellant Allman.

B. W. Blackwelder, of Concord, for appellant Cook.

A. A. F. Seawell, Atty. Gen., and John W. Aiken, Asst. Atty. Gen., for the State.

STACY, Chief Justice.

Outside of the technical questions, presently to be considered, the case upon trial narrowed itself principally to issues of fact determinable alone by the jury.

Under the motion to nonsuit, the defendants say the record discloses a fatal variance between the indictment and the proof, in that the ownership of the property is laid in "Cannon Mills Company, " whereas the state's evidence tends to show the stolen goods to be the property of "Cannon Mills." State v. Harris, 195 N. C. 306, 141 S. E. 883; State v. Harbert, 185 N. C. 760, 118 S. E. 6; State v. Gibson, 170 N. C. 697, 86 S. E. 774. It appears from an examination of the record that the witnesses used the two expressions interchangeably, meaning each time "Cannon Mills Company" when the abbreviated expression "Cannon Mills" was employed. The difference was not mooted on trial. It seems a clear case of idem sonans. State v. Drakeford, 162 N. C. 667, 78 S. E. 308; State v. Hester, 122 N. C. 1047, 29 S. E. 380.

The next position taken by the defendants is that the second count in the bill of indictment is fatally defective, in that the names of the defendants are not repeated in charging the scienter. State v. McCollum, 181 N. C. 584, 107 S. E. 309; State v. May, 132 N. C. 1020, 43 S. E. 819; State v. Phelps, 65 N. C. 450. This is a refinement which the act of 1811, now C. S. § 4623, sought to remedy. State v. Parker, 81 N. C. 531. It...