State v. Whitley

• Decision Date: 01 November 1935
• Docket Number: 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

November 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.

Verdict of jury that named defendants were guilty of receiving stolen goods, knowing them to have been stolen, held sufficient to support judgments of conviction rendered thereon.

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 & Barnhardt, 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 provides against quashal for informality if the charge be plain, intelligible, and explicit, and sufficient matter appear in the bill to enable the court to proceed to judgment. State v. Beal, 199 N.C. 278, 154 S.E. 604. The exception is too attenuate. State v. Lemons, 182 N.C. 828, 109 S.E. 27; State v. Francis, 157 N.C. 612, 72 S.E. 1041.

Speaking to the subject in State v. Shade, 115 N.C. 757, 20 S.E. 537, Avery, J., delivering the opinion of the court, said: "The trend of judicial decision, and the tendency of legislation, is towards the practical view, that objections founded upon mere matter of form should not be considered by the courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offense which he was held to answer. Where the defendant thinks that an indictment otherwise objectionable in form 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. State v. Brady, 107 N.C. [822] 826, 12 S.E. 325."

The point is also made by the defendant Cook that the evidence tends to show embezzlement, rather than larceny, on the part of John Allman; he being foreman of the waste house of the Cannon Mills, and, therefore, it is contended the charge of receiving must fail. In reply to this suggestion, it is sufficient to say the fact that Allman was employed by the Cannon Mills Company as foreman of the waste house did not change his theft of the goods from larceny to embezzlement. The goods were not taken from the waste house. They were sometimes concealed in the waste house at night after they had been purloined elsewhere; but Allman at no time had lawful possession of the property.

The final objection taken by the defendants is to the order of the court, made out of term and out of the county and at the time the cases were settled on appeal, directing the clerk to correct his entry as to the verdict against the defendants Whitley and Cook. It seems that the entry made at the trial was simply "guilty of receiving as to R. M. Cook, A. W. Whitley," whereas the verdict as returned by the jury was "guilty of receiving stolen goods knowing them to have been stolen as to R. M. Cook, A. W. Whitley." The objection is not to the substance of the change (State v. Brown, 203 N.C. 513, 166 S.E. 396), but to the manner and time of the correction.

If the matter were material, we would be disposed to sustain the objection, for it has been the uniform holding in this jurisdiction...