State v. McKoy

144 S.E.2d 46 (1965)

265 N.C. 380

STATE v. Joseph McKOY.

No. 169.

Supreme Court of North Carolina.

September 29, 1965.

*47 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Staff Atty. Charles M. Hensey, for the State.

William L. Hill, II, Wilmington, for defendant appellant.

PER CURIAM.

There was plenary evidence to support the verdict of guilty as to the first count in the bill of indictment. Moreover, defendant's assignments do not disclose error deemed sufficiently prejudicial to warrant a new trial as to the first count. Hence, the verdict and judgment with reference to said first count are upheld.

It is noted: Under G.S. § 14-72, as amended in 1959 (S.L. 1959, c. 1285), larceny by breaking and entering a building referred to therein is a felony without regard to the value of the stolen property. State v. Cooper, 256 N.C. 372, 378, 124 S.E.2d 91; State v. Jones, 264 N.C. 134, 137, 141 S.E.2d 27. The comment made before pronouncing judgment indicates the court may have overlooked said 1959 amendment. If so, it would seem defendant was a beneficiary of such oversight.

The second (larceny) count in the bill of indictment is fatally defective. While it alleges the larceny of "$60.00 in money," it fails to designate in any manner the owner thereof or the person in possession thereof at the time of the alleged unlawful taking. The space in the printed form for the name of the owner is blank. Moreover, the second (larceny) count contains no reference to the first (breaking and entering) count. In an indictment containing several counts, each count should be complete in itself. State v. McCollum, 181 N.C. 584, 107 S.E. 309. As to the insufficiency of the second (larceny) count, *48 see State v. Biller, 252 N.C. 783, 114 S.E.2d 659; also, State v. Thornton, 251 N.C. 658, 111 S.E.2d 901, and cases cited therein.

Since the second (larceny) count is fatally defective and insufficient to confer jurisdiction, this Court ex mero motu arrests the judgment pronounced with reference thereto. However, the solicitor, if so advised, may submit to another grand jury a new bill with reference to the alleged larceny and proceed against the defendant upon a sufficient indictment.

As to first (breaking and entering) count: No error.

As to second (larceny) count: Judgment arrested.