State v. Lilly

213 S.E.2d 418 (1975)

25 N.C. App. 453

STATE of North Carolina v. Spencer LILLY.

No. 7529SC48.

Court of Appeals of North Carolina.

April 16, 1975.

*419 Atty. Gen. Rufus L. Edmisten by Associate Atty. William H. Guy, Raleigh, for the State.

Robert L. Harris, Rutherfordton, for defendant-appellant.

MORRIS, Judge.

Defendant has abandoned his first two assignments of error. His remaining assignment of error relates to the denial of his motions for nonsuit at the close of the State's evidence and at the close of all the evidence. The State relied entirely upon the doctrine of possession of recently stolen property to overcome defendant's motions for judgment as of nonsuit. Defendant first contends the evidence in this case is insufficient for the doctrine to apply. We disagree. As was stated in State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67 (1966),

"[i]t is not always necessary that the stolen property should have been actually in the hands or on the person of the accused, it being sufficient if the property was under his exclusive personal control. 52 C.J.S., Larceny, § 107; 32 Am.Jur., Larceny, § 140; 1 Wharton's Criminal Evidence, 12th Ed. by Anderson, Presumptions and Inferences, § 135. This Court said in State v. Harrington, 176 N.C. 716, 96 S.E. 892: `The principle is usually applied to possession which involves custody about the person, but it is not necessarily so limited. "It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence." State v. Johnson, 60 N.C. [235] 237.'"

Defendant next argues that his motions for nonsuit should have been granted because there is no evidence that the stolen property was worth more than $200, and without such evidence a conviction for felonious larceny cannot be sustained. The State admits that the defendant's conviction for felonious larceny cannot be sustained where, as here, the jury acquitted the defendant of felonious breaking and entering and the trial court failed to instruct the jury to fix the value of the property taken in order to determine whether the value was in excess of $200, the burden of proof as to value in excess of $200 being upon the State as an essential element of the crime of felonious larceny where defendant is not charged with or found guilty of felonious breaking or entering as a part of the same occurrence. It is the State's contention, however, that the verdict in this case must be treated as a verdict of guilty of misdemeanor larceny, and the case remanded for resentencing. We agree. When faced with a similar problem in State v. Jones, 275 N.C. 432, 439, 168 S.E.2d 380, 385 (1969), our Supreme Court made the following statement:

"Our conclusion on this appeal is as follows: The jury having failed to find that the larceny of which defendant was convicted related to property of a value of more than two hundred dollars, the verdict must be considered a verdict of guilty of larceny of personal property of a value of two hundred dollars or less. This being a misdemeanor, the judgment imposed a sentence in excess of the legal maximum. Hence, although the verdict will not be disturbed, the judgment is vacated; and this decision will be certified to the Court of Appeals with direction to remand the case to the Superior Court of Guilford County for the pronouncement of a judgment herein as upon a verdict of guilty of misdemeanor larceny."

*420 On the basis of the foregoing authority, defendant's case is hereby remanded for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny.

Remanded for resentencing.

VAUGHN and CLARK, JJ., concur.