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North Carolina v. Ervin

Filed: November 6, 1979.

STATE OF NORTH CAROLINA
v.
ROBERT LEE ERVIN



Appeal by defendant from Walker, Judge. Judgment entered 10 January 1979 in Superior Court, Mecklenburg County.

Hill, Judge. Judges Vaughn and Erwin concur.

Hill

At the close of State's evidence, defendant moved to have the larceny count dismissed. The motion was denied and defendant asserts on appeal that this was error. Defendant asserts that the evidence, taken in the light most favorable to the State, was insufficient to show that Reginald Shepherd and the defendant were acting in concert.

It is clear that the court, on motion to dismiss, must look at the evidence in the light most favorable to the State. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955). A motion to dismiss is properly denied where there is more than a scintilla of competent evidence to support the allegations of the warrant or bill of indictment. See Kelly, supra. The State provided enough evidence so that it was proper for the court to dismiss defendant's motion.

A recent case, State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979), examines the acting in concert principle. Justice Exum states at p. 357 that,

It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

A reasonable inference can be drawn from State's evidence that the defendant had entered the building with Reginald Shepherd and was acting in concert with him. The two suspects were found only a few feet away from each other at a time when no one was supposed to be in the school. Both were dressed in athletic clothing, and the only entrance to the school was through the broken window -- a window that was near a basketball court.

All of the elements of larceny were addressed by State's evidence. There had been a breaking and entering through the window in the principal's office; there had been a taking and carrying away of the pistol kept in the principal's desk without his consent, and because the taking took place in the manner it did, intent to permanently deprive the principal of the pistol was evident. State v. Bronson, 10 N.C. App. 638, 641, 179 S.E.2d 823 (1971).

No error.

Disposition

No error.

19791106 ...


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