Appeal by defendant from Braswell, Judge. Judgment entered 3 April 1981 in Superior Court, Durham County. Heard in the Court of Appeals on 12 January 1982.
Hedrick, Judge. Judges Hill and Becton concur.
Defendant contends in his first argument that
[t]he Trial Court committed reversible error by instructing the Jury on larceny from the person, a felony, and failing to instruct on what is often called larceny "by trick," which is a misdemeanor when involving less than four hundred dollars ($400.00) under NC GS Section 14-72.
Citing State v. Harris, 35 N.C. App. 401, 241 S.E.2d 370 (1978), defendant asserts that "larceny by trick" is not a separate and distinct offense from common law larceny. He further reasons, citing State v. Bowers, 273 N.C. 652, 161 S.E.2d 11 (1968), , that "larceny by trick" of property having a value of less than $400 is a misdemeanor and a lesser included offense of "larceny from the person."
The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.
State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954). Assuming arguendo that "larceny by trick" of property having a value of less than $400 is a misdemeanor, and a crime of lesser degree than "larceny from the person," the defendant's first argument must fail simply because there is no evidence in this record that the defendant was guilty of misdemeanor larceny by trick or otherwise. The State's evidence tended to show felonious larceny from the person, a felony. Defendant's evidence tended to show that the defendant sold McCoy a pound of "yard grass." In 50 Am. Jur. 2d Larceny § 29 (1970), we find the following:
When, in addition to possession, the owner voluntarily passes title as well to the alleged thief, not expecting the property to be returned to him or to be disposed of in accordance with his directions, it is well established that the taking in such case involves no trespass and that the taker is not guilty of larceny, and this is true even where the owner is induced to part with the title through the fraud and misrepresentation of the alleged thief. Although the acts of the perpetrator of the fraud may be criminal in such a case, they constitute some other crime than common-law larceny, such as swindling or obtaining property by false pretenses . . . .
While the defendant's evidence may tend to show that he obtained $100 from his victim by fraud or false pretense, his evidence would not permit the jury to find him guilty of larceny because the defendant's evidence discloses no trespass, actual or constructive.
The defendant next argues the court erred to his prejudice by allowing the district attorney to ask him on cross examination whether he had sold drugs and stolen a diamond ring. The applicable rule with respect to such cross examination of the defendant is set out in State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971) as follows:
It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. [Citations omitted.] Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others. We do not undertake here to mark the limits of such cross-examination except to say generally (1) ...