State v. Law, 228 N.C. 443 (1947)

Dec. 19, 1947 · Supreme Court of North Carolina

228 N.C. 443

STATE v. JAMES LAW and MATTHEW KELLY.

(Filed 19 December, 1947.)

Intoxicating Liquor § 8: Indictment § 30: Larceny § 4—

An indictment for larceny of an automobile wbicb bad been seized by officers of the law wbicb lays tbe ownership of the automobile individually in one of tbe officers who had seized it, will not be held fatally defective, since such officer was entitled to hold tbe automobile and approve bond for its return, and thus bad a special interest therein sufficient to obviate a fatal variance.

Appeal by defendants from Clement, J., at June Term, 1947, of Forsyth.

Criminal prosecution on indictment charging tbe defendant, in one count, with tbe larceny of an automobile, of tbe value of $700.00, tbe property of one Oscar Morrison; and in a second count, with receiving the same automobile, knowing it to have been feloniously stolen or taken in violation of G. S., 14-71.

Tbe evidence for tbe prosecution tends to show that on tbe night of 15 April, 1946, Oscar Morrison and Holt Neal, police officers of tbe Oity of Winston-Salem, took possession of an automobile on Mickey Mill Eoad in tbe Eastern section of tbe Oity, wbicb they thought bad been used in tbe transportation of non-tax-paid whiskey contrary to law, and drove it to tbe city lot where it was parked for tbe night.

During tbe night, tbe automobile was stolen from tbe city lot, and there is evidence, circumstantial and presumptive, tending to connect tbe defendants with its disappearance.

Tbe defendants rested on their demurrers to tbe State’s case and offered no evidence.

Verdict: Guilty as to both defendants.

Judgment: Two years on tbe roads as to each defendant.

Tbe defendants appeal, assigning errors.

Attorney-General McMullan and. Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.

William H. Boyer and Philip B. Lucas for defendant.

Stacy, C. J.

Tbe case was here at tbe Fall Term, 1946, on an indictment which laid tbe ownership of tbe property in tbe City of Winston-Salem. Tbe officer who seized tbe property was alone entitled to bold it, or approve bond for its return, and it was suggested tbe right to tbe property should be laid in tbe seizing officer or in tbe custody of tbe law. 227 N. C., 103.

In tbe present bill, tbe ownership of tbe property is laid in Oscar Morrison. On tbe bearing, it appeared that Oscar Morrison was one of tbe seizing officers who took possession of tbe automobile. Tbe defendants have again pressed the issue of fatal variance with vigor and confidence.

Oscar Morrison, as one of tbe, seizing officers, was entitled to bold tbe automobile and to approve bond for its return, thus be bad a special interest therein. This suffices, we think, to overcome tbe demurrers to tbe evidence and to obviate a fatal variance. S. v. Allen, 103 N. C., 433, 9 S. E., 626; S. v. Bell, 65 N. C., 313; S. v. Grant, 104 N. C., 908, 10 S. E., 554.

Tbe exceptions to tbe charge are too attenuate to invalidate tbe trial.

Tbe verdict and judgments will be upheld.

No error.