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North Carolina v. Perry

Filed: March 3, 1982.

STATE OF NORTH CAROLINA
v.
ULYSEES PERRY



The State of North Carolina appeals as of right pursuant to G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals reported at Meyer, Justice. Justice Mitchell took no part in the consideration or decision of this case. Justice Carlton concurring in result only.

Meyer

The State's appeal sets forth two issues: (I) whether the Court of Appeals erred in vacating the felonious larceny conviction and directing entry of a judgment based upon misdemeanor larceny, and (II) whether the Court of Appeals erred in vacating the possession conviction and ordering the charge dismissed because of double jeopardy considerations.

(I)

In support of its contention that the Court of Appeals erred in reducing the felonious larceny conviction to a misdemeanor, the State argues that G.S. § 14-72 will support the interpretation that a defendant can be found guilty of felonious larceny after a breaking or entering without the necessity of a finding either (1) that the defendant personally committed the breaking or entering or that he was an accessory or aider and abetter to the principal who committed the breaking or entering, or (2) that the property stolen had a value of more than $400.00. The thrust of the State's argument is that a defendant can be found guilty of felonious larceny regardless of the value of the goods involved, if his act of larceny occurs pursuant to or after a breaking or entering by anyone and, therefore, the conviction of the defendant here of felonious larceny pursuant to a breaking or entering is neither inconsistent with nor contradictory to his acquittal of breaking or entering charges. We cannot agree.

G.S. § 14-72, as it existed at the time of this offense, provided in pertinent part as follows:*fn1

§ 14-72. Larceny of property; receiving stolen goods or possessing stolen goods not exceeding $400.00 in value. -- (a) Except as provided in subsections (b) and (c) below, the larceny of property, the receiving of stolen goods knowing them to be stolen or the possessing of stolen goods knowing them to be stolen, of the value of not more than four hundred dollars ($400.00) is a misdemeanor punishable under G.S. 14-3(a). In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen.

(b) The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is:

(1) From the person; or

(2) Committed pursuant to a violation of G.S. 14-51, 14-53, 14-54 or 14-57; or

This statute provides, inter alia, that the larceny of property of the value of not more than $400.00 is a misdemeanor unless the larceny fits into one or the categories enumerated in subsection (b).

The defendant was convicted of felonious larceny under section (b)(2) upon the theory that he stole the heaters pursuant to a breaking or entering in violation of G.S. § 14-54. However, the jury acquitted the defendant of the actual breaking or entering. The trial judge did not submit for jury determination the value of the property stolen.

All of the evidence showed that the three heaters had a value of $75.00 each or an aggregate value of less than $400.00. In vacating the felonious larceny conviction, the Court of Appeals relied on State v. Keeter, 35 N.C. App. 574, 241 S.E.2d 708 (1978), cases cited therein, and State v. Cornell, 51 N.C. App. 108, 275 S.E.2d 857 (1981). The cases cited set forth the rule that it is improper, absent the jury's finding that the property stolen exceeded the diacritical amount set forth in the statute, for the trial judge to accept a verdict of guilty of felonious larceny where the jury has failed to find the defendant guilty of the felonious breaking or entering pursuant to which the larceny occurred.

'Our courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to be felonious.'

(Citation omitted.) G.S. 14-72 was amended, effective 1 January 1980, to increase from $200 to $400 the value which stolen property must exceed in order to constitute a felony. 1979 Sess. Laws, ch. 408.

State v. Perry, 52 N.C. App. 48, 52-53, 278 S.E.2d 273, 277.

Although the State urges us to overrule as unsound the prior cases establishing the rule set out above, we decline to do so. We believe that the statute cannot reasonably be interpreted to permit the defendant's conviction of felonious larceny merely because he committed the larceny pursuant to or after a breaking or entering by some stranger. The only case upholding a felonious larceny conviction following the defendant's acquittal of breaking or entering is State v. Curry, 288 N.C. 312, 218 S.E.2d 374 (1975). There, this Court held that on the special facts in that case, a not guilty verdict on the breaking or entering count was not necessarily a finding by the jury that the larceny was not committed by the defendant pursuant to a breaking or entering. The Court reasoned that, given the facts produced at trial, the instructions of the trial judge and the verdicts, the jury in Curry must have found that the defendant aided and abetted two other men in a larceny they committed pursuant to a breaking or entering by them, but did not aid or abet them in the breaking or entering. Thus, the two verdicts were logically reconciled. Here, the State did not contend, nor was any evidence presented which would permit the jury to find, that Perry had aided or abetted another's larceny pursuant to a breaking. We agree with the decision of the Court of Appeals that the case must be remanded to the superior court for vacation of the felonious larceny conviction and for the pronouncement of judgment as upon a verdict of guilty of misdemeanor larceny.*fn2

(II)

The State next contends that the Court of Appeals erred in vacating the defendant's possession conviction and in ordering

that charge dismissed because of double jeopardy considerations. The Court of Appeals in effect held that the defendant's conviction of possession of stolen goods must be vacated because he could not be convicted of both larceny of the property and possession of the same stolen property which was the subject of the larceny. That court reasoned, first, that the Legislature did not intend for there to be two separate and distinct offenses, and second, that double jeopardy considerations preclude conviction of both ...


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