State v. Wilder , 11 N.C. App. 690 ( 1971 )

HEDRICK, Judge.

By an exception to the denial of his motion for judgment as of nonsuit, the defendant contends that the evidence, when considered in the light most favorable to the State, is not sufficient to be submitted to the jury on the charge of larceny of property having a value in excess of $200.

The bill of indictment charged the defendant with the theft of an auto tape player, twenty-four tapes, and a dress, having an aggregate value of $230.21. The evidence tended to show that the dress had a value of $25, but there is no evidence whatsoever connecting the defendant with the theft of the dress. The auto tape player was described in the bill of indictment as having serial number CE 1084. The tape player identified and introduced into evidence at the trial as State’s Exhibit 2 was valued by its owner at $90; however, according to the testimony of the owner it bore serial number 0147.

The officer testified that he found several tape players in the wooded area “similar” to State’s Exhibit 2.

In his brief defendant states:

“Thus, while there was evidence sufficient to allow a finding of guilty of the lesser offense, there was no evidence to sustain that the value was in excess of $200.00; and as to that charge, a motion as of nonsuit should have been allowed.”

The evidence, when considered in the light most favorable to the State, would allow the jury to find that the defendant took a variety of tapes from the automobile of the prosecuting witness. These tapes, together with the case in which they were kept, were identified and introduced into evidence as State’s Exhibit 1. State’s1 Exhibit 1, together with several tape players and some loose tapes, was recovered by the police from the wooded area where the defendant and his companions were found and taken into custody. There is no evidence that the variety of tapes, State’s Exhibit 1, had a value in excess of $200.

The court correctly denied the defendant’s motion for judgment as of nonsuit, but the court should have submitted the case to the jury only as to the larceny of the variety of tapes, for there is no evidence in the record tending to show that the defendant stole the dress or the tape player.

The evidence will not support a verdict of guilty of felonious larceny. For error in submitting the case to the jury on the charge of larceny of property having a value in excess of $200, the defendant is entitled to a new trial on the charge of the larceny of the tapes described in the bill of indictment, and having a value of less than $200.

New trial.

Judges Brock and Morris concur.