State v. Greene , 27 N.C. App. 718 ( 1975 )

VAUGHN, Judge.

Upon the evidence presented the jury could have found that the boggs described in the indictment were stolen on or after the night of 15 May 1974 and that they were the same boggs in the unexplained possession of defendant and by him sold to Pierce on 22 May 1974. From the foregoing circumstances the jury could infer that defendant had stolen the boggs.

Some of the State’s evidence was that the value of the boggs was sufficient to make the larceny thereof a felony. Other State’s evidence tended to show that the boggs were worth less than $200.00. Under the charge of the court the jury was also permitted to find that defendant also stole the missing tractor. If the evidence was insufficient to go to the jury on the question of whether defendant stole the tractor, there must be a new trial, because it cannot be said that the jury did not consider the value of the tractor when it considered whether defendant was guilty of felonious larceny or misdemeanor larceny.

Does the inference that is permitted by reason of defendant’s possession of the stolen boggs soon after their theft, permit the additional inference that defendant also took the tractor that was last seen at the same place from which the stolen boggs were taken ?

This Court has said:

“Where it is shown that a number of articles of property have been stolen at the same time and as a result of the same breaking and entering of the same premises, evidence that a defendant charged with the crimes has possession of one of such articles tends to prove, not only that he stole that particular article, but also that he participated in the breaking and entering and in the larceny of the remaining property. State v. Blackmon, 6 N.C. App. 66, 75, 169 S.E. 2d 472, 478. (Emphasis added.)

The case now before us, however, does not involve a breaking or entering. The Supreme Court of this State appears to have made a distinction between when separate items are taken after a breaking or entering and when they are merely taken from the same premises at or near the same time.

In State v. Foster, 268 N.C. 480, 151 S.E. 2d 62, defendant was charged with and convicted of felonious breaking or entering and felonious larceny.

Evidence in the record on appeal filed in that Court discloses that the operator of a service station testified as follows:

“On January 1, 1966, I operated a Phillips 66 Service Station consisting of a one-story building with five rooms, including a grease bay, wash bay, and three rooms. On January 1, 1966, I had in. this building tires, battery charger, tools, cigarettes, a few canned goods, polishes, and washes.

I left this building- at 7:30 o’clock on the night of December 31st, completely locked. All the windows were down and fastened and all the doors were closed and fastened. I came back to the service station at 15 minutes of 2:00 o’clock on the morning of January 1st, 1966. The grease bay door, a big 10-foot wide door that enters the building, was rolled up about eighteen inches. It was down when I left there at 7:30 the night before. A glass about 16 x 19 in the big door was broken out and was scattered all over the floor inside the building. A small door that goes into my display room had a hole, about 8 x 10, broken in it and a small glass in the corner of the door was broken out. The door was not unlocked. The shattered glass from that was inside the building. That door had not been opened. It could not be unlocked by sticking a hand through that broken hold.

* * ❖

I discovered six Phillips ‘66’ tires were missing. Two were 775x14 Deluxe action tread, wrap around tread. Two were 825x14 premium action tread, white wall. Two were 775x15 safety action tread, black wall. Four were white wall and two were black wail. The Deluxe and premium were white walls. There was also missing approximately a half dozen cartons of cigarettes, mostly Winstons. When I left the night before, the tires were in the storeroom, right straight on through the display room. There is a wooden door to this room, but I don’t think it was closed the night before when I left.

A small amount of change in a cigar box in the counter under the cash register, community flower money, at least a $1.00, maybe a little more, was missing.

I then went over in my grease bay and found my battery charger was missing. It was a used battery charger, I’m not sure about the name of it because it had been repainted. It was white with red trim. When I left the night before, it was inside the lube bay door. I do not believe there was anything else missing.” (Emphasis added.)

The battery charger was worth $75.00 and the six tires were valued at more than $200.00.

There was other evidence tending to show that shortly thereafter defendant was in possession of the stolen battery charger and tires which fit the general description of those taken from the service station. The Supreme Court concluded that the evidence was insufficient to identify the tires as being the ones taken from the station and that consequently, “the rule of recent possession of stolen property cannot apply to these six automobile tires.” The Court held that there was ample evidence that the battery charger found in defendant’s possession was the one taken from the station but was of the opinion that “no breaking and entering was involved in taking this electric battery charger.”

The Court then held that a judgment of nonsuit should have been entered on the breaking or entering charge. Since the Court found there was no evidence defendant took the tires and other items taken at the same time and from the same premises as the battery charger, the judgment of guilty of felonious larceny was vacated and the case was remanded for proper judgment for larceny of the battery charger (valued at less than $200.00), a misdemeanor. The Court said

“The evidence of the State tends strongly to show that the defendant is guilty of the larceny of the electric battery charger stolen from the grease pit of Floyd Hinson, the property of Floyd Hinson, but there is no evidence that he was guilty of the larceny of the six automobile tires and the six cartons of cigarettes specified in the second count in the indictment, and there is no evidence that defendant is guilty of breaking and entry as charged in the first count in the indictment.” State v. Foster, supra.

Our consideration of the facts in Foster leads us to conclude that there was, indeed, some evidence that a breaking and entering was involved in the taking of the battery charger. That the Supreme Court reached a contrary conclusion on the facts does not alter the control that the law of that case must have on the case before us.

In Foster, the State’s evidence puts defendant in possession of tires which were “of the same size, tread design and in the same order” as those taken from the same premises and on the same night that the battery charger (also found in defendant’s possession) was taken. In the case before us the State’s evidence does not put a tractor of any description in defendant’s possession. Foster held that defendant’s possession of the battery charger was no evidence that he was guilty of larceny of the tires in his possession even though they fit the description of the State’s items. In light of the foregoing, we feel compelled to hold that although the evidential fact or circumstance of defendant Greene’s unexplained possession of the boggs permits the inference that he stole the boggs, that circumstance, standing alone, does not permit the further inference that he took the still missing tractor.

There are, however, additional evidential circumstances to be considered by the jury. The additional circumstances relate to the very nature of the stolen property. When last seen the tractor was attached to the boggs and disappeared at or about the same time. Ordinarily boggs are moved by a tractor. Ordinarily the lift of a tractor is used to raise boggs if they are loaded onto another conveyance. The disc boggs were very heavy (heavier than a disc harrow) and are difficult to load and move without a tractor. The boggs have no utility without a tractor. We think these additional evidential circumstances allow us to distinguish the present case from Foster and hold that the jury was properly allowed to consider whether defendant also took the tractor when he took the boggs.

We have reviewed defendant’s other assignments of error and they are overruled.

We find no prejudicial error in defendant’s trial.

No error.

Chief Judge Brock concurs. Judge Martin dissents.