State v. Wooten

197 S.E.2d 614 (1973)

18 N.C. App. 652

STATE of North Carolina v. Clifton WOOTEN, Jr.

No. 733SC411.

Court of Appeals of North Carolina.

July 11, 1973.

Certiorari Denied August 31, 1973.

Atty. Gen. Robert Morgan by William F. O'Connell, Asst. Atty. Gen., Raleigh, for the State.

Laurence S. Graham, Greenville, for defendant-appellant.

Certiorari Denied by Supreme Court August 31, 1973.

BRITT, Judge.

The only assignment of error brought forward and argued in defendant's brief is that the trial court erred in denying defendant's motion to arrest the judgment. Defendant contends that the warrant is fatally defective for the reason that it does not show that King's Department Store, 264 By-Pass, Greenville, N. C., is a *615 natural person or a legal entity capable of owning property; that shoplifting is a "descendent" of the crime of larceny, therefore, the rule applicable to larceny applies to shoplifting.

Defendant relies on State v. Biller, 252 N.C. 783, 114 S.E.2d 659 (1960), and State v. Thompson, 6 N.C.App. 64, 169 S.E.2d 241 (1969), in which cases the Supreme Court and this court declared that a warrant for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective. Our attention has been directed also to State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960), in which the same rule was applied to the charge of embezzlement.

While we recognize the rule stated in Biller and Thornton, we do not think it is applicable to G.S. § 14-72.1, the shoplifting statute under which defendant was charged.

Larceny is a common law offense, defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965).

The crime of embezzlement, unknown to the common law, was created and is defined by statute. State v. Ross, 272 N.C. 67, 157 S.E.2d 712 (1967). With respect to the owner of the property embezzled or misappropriated, our embezzlement statute, G. S. § 14-90, provides that the property alleged to have been misappropriated belonged "to any other person or corporation, unincorporated association or organization."

Our shoplifting statute, G.S. § 14-72.1, provides in pertinent part as follows: "(a) Whoever, without authority, willfully conceals the goods or merchandise of any store, not theretofore purchased by such person, while still upon the premises of such store, shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than one hundred dollars ($100.00), or by imprisonment for not more than six months, or by both such fine and imprisonment. Such goods or merchandise found concealed upon or about the person and which have not theretofore been purchased by such person shall be prima facie evidence of a willful concealment." (Emphasis added.)

It is well settled in this jurisdiction that statutes creating criminal offenses must be strictly construed, State v. Ross, supra, and it appears that our Supreme Court has applied the strict construction rule to common law offenses. The common law offense of larceny contemplates that the property taken must belong to or be in the possession of another and the statutory offense of embezzlement provides that the misappropriated property must belong to "any other person or corporation, unincorporated association, or organization." In view of the breadth of the offenses of larceny and embezzlement, it is understandable that the court has declared that the warrant or bill of indictment charging these offenses must allege the ownership of the property either in a natural person or a legal entity capable of owning property.

Our statutory offense of shoplifting, however, is very limited in its application, particularly with respect to the owner or possessor of the property covered. In State v. Hales, 256 N.C. 27, 33, 122 S.E.2d 768, 773 (1961), we find: "The statutory offense created by G.S. § 14-72.1 is composed of four essential elements: Whoever, one, without authority, two, willfully conceals the goods or merchandise of any store, three, not theretofore purchased by such person, four, while still upon the premises of the store, shall be guilty of a misdemeanor." (Emphasis added.)

Presumably G.S. § 14-72.1, due to its narrow scope, would not cover property in a residence, bank, school or church *616 only "the goods or merchandise of any store." While drafters of warrants charging a violation of this statute would be well advised to allege whether the merchandising firm is a natural person or a corporation, we do not think the failure to do so in the case at bar rendered the warrant fatally defective.

No error.

HEDRICK and VAUGHN, JJ., concur.