State v. Holloway

144 S.E.2d 634 (1965)

265 N.C. 581

STATE v. Robert Earl HOLLOWAY.

No. 499.

Supreme Court of North Carolina.

November 10, 1965.

*635 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Staff Attorney James E. Magner, Raleigh, for the State.

Douglas F. DeBank, Raleigh, for defendant appellant.

PER CURIAM.

Evidence for the State tends to show: Approximately a week prior to May 21, 1963 an inventory was taken of television sets owned by Telerent, Inc., and stored in its warehouse at 613 West North Street, Raleigh, N. C. On May 23, 1963, upon discovering that many television sets were missing, employees of Telerent, Inc., took another inventory, determined that 37 sets were missing, and listed the model and serial numbers of the missing sets.

Evidence for the State tends to show each of six of the television sets taken from said warehouse was in the possession of appellant alone or in the joint possession of appellant and his codefendants at a time generally identified as the last of May or the first of June 1963. As indicated, the State relies largely on the presumption arising from the possession of goods recently stolen. In our view, the evidence was sufficient to warrant submission to the jury; and defendant's assignment of error directed to the denial of his motion for judgment as of nonsuit is without merit.

The court instructed the jury as follows: "Now, with reference to the second charge in the bill of indictment, that of larceny, I instruct you that if the State has satisfied you from the evidence and beyond a reasonable doubt that on or about the 21st day of May, 1963, in Wake County, the defendant Robert L. Holloway feloniously took and carried away property, that is, television sets of Telerent, Inc., without its consent or consent of its agent and against the will of said corporation and that said property was taken and carried away by the said Robert Earl Holloway, either alone or with others, with felonious intent to deprive Telerent, Inc., of its property permanently and feloniously and used and converted same to his own use or the use of some other than the owner, not entitled to the use thereof, if you find these facts beyond a reasonable doubt, the burden being on the State to satisfy you, it would be your duty to return a verdict of guilty of larceny as charged in the second count of the bill of indictment." Defendant excepted to this instruction on the ground that it did not require the State to prove or the jury to find beyond a reasonable doubt that the value of the television sets stolen by defendant was in excess of $200.00.

In State v. Cooper, 256 N.C. 372, 124 S.E.2d 91, it is stated: "Except in those instances where G.S. 14-72, as amended, does not apply, we are of opinion, and so decide, that to convict of the felony of larceny, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than $200.00; and, this being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury." It is noted that the verdict of not guilty as to the first count establishes that defendant *636 did not commit the alleged larceny pursuant to an unlawful and felonious breaking and entering and therefore G.S. § 14-72, as amended, does not apply.

Absent such breaking and entering, a verdict of guilty of larceny of property valued at $200.00 or less was permissible; and the jury should have been so instructed. State v. Cooper, supra.

For failure of the court to instruct the jury in accordance with our decision in State v. Cooper, supra, defendant must be and is awarded a new trial as to the second (larceny) count of said indictment.

New trial.