State v. Wilson

142 S.E.2d 180 (1965)

264 N.C. 595

STATE v. Robert G. WILSON. STATE v. Charles Henry POOLE Alias Julius Sechrest.

No. 831.

Supreme Court of North Carolina.

June 2, 1965.

*181 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Charles W. Barbee, Jr., for the State.

Edward S. Holmes, Pittsboro, for defendant appellant Wilson.

B. C. Smith, Pittsboro, for defendant appellant Poole.

PER CURIAM.

A separate brief was filed in behalf of each appellant by his court-appointed counsel.

Each appellant contends his motion for judgment as of nonsuit should have been allowed on two grounds, (1) a fatal variance between the indictment and the evidence, and (2) insufficiency of the evidence.

The indictment refers to the building occupied by and to chattels of "one B. M. Hancock & Son, a corporation." The corporation's president and general manager refers to the occupant of the building and the owner of the chattels therein as "B. M. Hancock & Son's Feed Mill, Inc." and also as "B. M. Hancock & Son, Inc." Other witnesses, referring to the identical building and the owner of the chattels therein, speak variously of "B. M. Hancock & Son's," "B. M. Hancock & Son," "B. M. Hancock & Son's Feed Mill," "B. M. Hancock's Feed Mill," "B. M. Hancock's Mill," and "B. M. Hancock." During the trial, no attempt was made to stress or identify the precise corporate name. The various names indicated were used interchangeably to identify the occupant of the building and the owner of the chattels therein. As stated by Winborne, C. J., in State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420: "It is apparent that all the witnesses were talking about the same thing." The variance was not fatal and did not require a nonsuit. State v. Wyatt, supra; State v. Davis, 253 N.C. 224, 226, 116 S.E.2d 381; State v. Whitley, 208 N.C. 661, 182 S.E. 338.

There was plenary evidence of a felonious breaking and entering of said corporation's *182 office building on the night of Tuesday, July 7, 1964, and that said corporation's check-writing machine and filing cabinet, referred to in the bill of indictment, were stolen therefrom. The break-in was discovered and later that night the four persons named in the joint indictment were arrested.

The State relied upon circumstantial evidence to identify appellants as persons who committed the crimes charged in the two-count bill of indictment. After careful examination thereof in the light of the rule stated in State v. Stephens, 244 N. C. 380, 93 S.E.2d 431, and subsequent cases in accord therewith, the conclusion reached is that the evidence, when considered in the light most favorable to the State, State v. Orr, 260 N.C. 177, 179, 132 S.E.2d 334, was sufficient to require submission to the jury and to support the verdict as to each appellant.

With reference to assignments of error based on exceptions to the failure to strike certain evidence as to the value of the check-writing machine and filing cabinet, 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. Moreover, since the two sentences run concurrently, error, if any, with reference to the second (larceny) count was not prejudicial to appellants. State v. Vines, 262 N.C. 747, 749, 138 S.E.2d 630, and cases cited.

All assignments of error of each appellant, including those based on exceptions to evidence rulings and to portions of the charge, have been considered. In our opinion, they do not disclose prejudicial error and particular discussion thereof is deemed unnecessary.

No error.