Opinion
Filed 4 May, 1966.
Larceny 8, 9 — Where the indictment charges the larceny of property many times the value of $200 and the evidence amply supports the charge, and there is no evidence to the contrary, it is not necessary for the court to instruct the jury that the burden is on the State to prove the value of the property exceeded $200 in order to render a verdict of guilty of a felony, and it is not required that the jury find that its value was in excess of $200 in order to support sentence.
APPEAL, by defendant from Bailey, J., September 13, 1965, Regular Criminal Session of WAKE.
Attorney General Bruton and Deputy Attorney General McGalliard for the State.
Douglas F. DeBank for defendant.
MOORE, J., not sitting.
BOBBITT, J., dissenting.
SHARP, J., joins in dissenting opinion.
The defendant is charged in the bill of indictment with the larceny on 14 March 1965 of a 1961 Chevrolet automobile of the value of $1200.00, the property of House Motors, Inc.
The State's evidence tends to show these facts: That about 11:30 P.M. on 14 March 1965, a Raleigh policeman, John Farmer, was patrolling on foot in the vicinity of House Motors, Inc., on West Cabarrus Street in the City of Raleigh; that as he approached the car lot of House Motors, Inc., he noticed an automobile with the engine running; that the car turned in the lot, was driven past him, veered out of control as it exited from the car lot, and struck a utilities pole on the opposite or north side of Cabarrus Street. Immediately after the car struck the pole, the police officer observed a dark skinned male exit from the right side of the automobile and run eastward across a filling station lot toward Fayetteville Street. The officer saw no other person in or about the wrecked car. The officer reported the car as a total loss. The steering wheel was bent and there were two or three pieces of substance in a dent on the steering wheel, which the officer testified in his opinion were parts of a tooth or teeth. The hospitals were notified and requested to report to the police department any person entering the hospital with an injured mouth. The next day the defendant entered one of the local hospitals for treatment of his swollen mouth. He was interviewed by two members of the Raleigh Police Department and confessed to the theft of the car involved and further stated that he did not know what he hit, but as soon as the car hit something he jumped out of the car and ran.
The State's evidence further tended to show the value of the wrecked car was $1250.00; that the insurance adjuster classified the car as a total loss, and the insurance company paid House Motors, Inc., $1250.00 for the damages resulting from the wreck.
The jury returned a verdict of guilty as charged in the bill of indictment.
From a judgment of not less than four nor more than six years, to be assigned to work under the supervision of the State Prison Department, the defendant appeals, assigning error.
The defendant assigns as error the failure of the lower court to charge the jury that the State must prove and the jury must find that the defendant took property of a value of greater than $200.00, and that a verdict of guilty of the misdemeanor of larceny was possible should the State fail to prove or the jury fail to find that the value of the stolen property exceeded $200.00.
In the instant case the bill of indictment charged that the 1961 Chevrolet automobile allegedly stolen by the defendant had a value of $1200.00, and the State's evidence tends to show that the car prior to the time it was stolen and wrecked had a value of $1250.00, in that the insurance adjuster classified the wrecked car as a total loss and the insurance company paid House Motors, Inc., the sum of $1250.00 occasioned by the loss. Moreover, there is not a scintilla of evidence to the contrary. The statute, G.S. 14-72 expressly states, "In all cases of doubt the jury shall in its verdict fix the value of the property stolen."
In our opinion the above portion of the statute means exactly what it says, and where all the evidence is to the effect that the stolen property had a value many times in excess of $200.00, and there is no evidence or contention to the contrary, the trial court is under no legal obligation to require the jury to fix the value of the stolen property. Or, to put it another way, the bill upon which the defendant was tried charged the defendant with the larceny of a 1961 Chevrolet automobile of the value of $1200.00 and the evidence amply supports the charge, and there is no evidence to the contrary. Therefore, it would seem to be unnecessary upon such a factual situation to require the jury to find that a 1961 Chevrolet automobile of the value of $1200.00 was worth more than $200.00. State v. Brown, 266 N.C. 55, 145 S.E.2d 297.
In our opinion this assignment of error is without merit since the jury returned a verdict of guilty as charged in the bill of indictment.
An examination of the remaining assignments of error discloses no prejudicial error. In the trial below we find
No error.
MOORE, J., not sitting.