Appeal by defendant from Rousseau, Judge. Judgment entered 2 April 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 8 April 1982.
Hill, Judge. Judges Hedrick and Becton concur.
The State's evidence tends to show that on the morning of 16 January 1981, the physical and aquatics director for the Hayes-Taylor YMCA in Greensboro, Clarence Robinson, Jr., came in early to clean up and found the building "in a disorderly fashion." Subsequently, he discovered that certain items were missing from the YMCA. Robinson testified that all the missing items "were
not under my direct custody and control. Yes, some of the items I mentioned were taken from various parts of the YMCA." Although he did not present documents to show that the missing items were present at the YMCA and belonged to the YMCA, Robinson stated that he "used all of these items in [his] work at the YMCA." testified that he was present when defendant entered the YMCA building through an open window. He stated, "After [defendant] went in the window, he came down there and opened the door and I went in." The two thereafter plundered the building. Defendant presented no evidence.
On appeal, pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, defendant argues that the count in the indictment charging him with larceny is fatally defective because it "fails to allege ownership of the property taken either in a natural person or a legal entity capable of owning property. . . ."
"An indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective." State v. Roberts, 14 N.C. App. 648, 649, 188, S.E.2d 610, 611 (1972). Accord State v. Thompson, 6 N.C. App. 64, 169 S.E.2d 251 (1969). The indictment in the present case, quoted in pertinent part above, does not allege that "Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch" is a corporation or other legal entity capable of owning property; nor does the name indicate that it is a corporation, nor does it indicate a natural person. See State v. Roberts, supra; State v. Thompson, supra. Therefore, the larceny count in this indictment is fatally defective. The remainder of our opinion is directed to the breaking and entering count of the indictment.
In his second argument, defendant contends that the trial judge erred in failing to grant his motion for a continuance in order to secure the presence of his alibi witnesses.
It is well established that a motion to continue is ordinarily addressed to the trial judge's sound discretion and his ruling thereon will not be disturbed except upon a showing that he abused that discretion. [Citations omitted.] However, when a motion to continue is based on a constitutional
right, the question presented is a reviewable question of law.
State v. McFadden, 299 N.C. 609, 611, 234, S.E.2d 742, 744 (1977). Since the right to present one's defense is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, the denial of defendant's motion in this case presents a constitutional question.
Here, defendant's counsel had subpoenaed four persons--defendant's three sisters and his girlfriend -- on behalf of defendant for the preceding week, when this case originally was calendared for trial. Although they were not located, the potential witnesses told defendant they would visit him in jail the afternoon of the day the case was called for trial. The trial judge ordered the bailiff to "call the jail and tell that if the people come inquiring of [defendant] to send them over here to the courthouse immediately," and denied defendant's ...