Appeal by defendant from Freeman, Judge. Judgment entered 11 March 1981 in Superior Court, Rutherford County. Heard in the Court of Appeals 1 February 1982.
Vaughn, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.
Three of defendant's assignments of error relate to the indictment for larceny by an employee. Defendant first argues that the indictment is defective because it fails to allege a trust delivery. We overrule this assignment of error.
G.S. 14-74 states the following:
"If any servant or other employee, to whom any money, goods or other chattels . . . by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods, or other chattels . . . with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; . . . the servant so offending shall be punished as a Class H felon: Provided, that nothing contained in this section shall extend to . . . servants within the age of 16 years."
According to State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308 (1977), an indictment charging a violation of G.S. 14-74 must allege that the property was received and held by the defendant in trust, or for the use of the owner, and that being so held, it was feloniously converted or made away with by the servant or agent.
The present indictment alleges that the defendant feloniously carried away two black angus cows which were owned by Royce B. Thomas. It further alleges taht
"[a]t the time of this larceny the defendant was the employee of Royce B. Thomas and the said cows had been delivered
safely to the defendant to be kept to the use of Royce B. Thomas, and the defendant converted them to his own use with the intent to steal them and to defraud his employer, without the consent of his employer. The defendant occupied a position of trust and confidence."
Because the indictment alleges that the cows were delivered to defendant "to be kept to the use of " his employer, we hold the indictment sufficiently alleges a trust delivery. It is not necessary for the indictment to allege who delivered the cows to defendant. See also State v. Maslin, 195 N.C. 537, 539, 143 S.E. 3, 5 (1928), rev'd on other grounds, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Lanier, 89 N.C. 517, 519 (1883).
Defendant next argues that the indictment is inadequate because it fails to allege that he is at least 16 years old. He cites the statutory phrase, "Provided, that nothing contained in this section shall extend to . . . servants within the age of 16 years." Defendant contends that age is an essential element of G.S. 14-74, which must be alleged, proven and charged. We disagree.
We are aided in our analysis by State v. Connor, 142 N.C. 700, 55 S.E. 787 (1906). Addressing a question similar to the ...