State v. Speas , 265 N.C. App. 351 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-456
Filed: 7 May 2019
Cumberland County, No. 16 CRS 63767
STATE OF NORTH CAROLINA
v.
ALBERT LEWIS SPEAS
Appeal by defendant from judgment entered 10 October 2017 by Judge Claire
V. Hill in Cumberland County Superior Court. Heard in the Court of Appeals 28
March 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General M.
Denise Stanford, for the State.
Charlotte Gail Blake for defendant-appellant.
BRYANT, Judge.
Defendant Albert Lewis Speas appeals from judgment entered upon his
conviction for felonious larceny. After careful review, we find no error.
On 14 February 2017, defendant was indicted for felonious larceny and
felonious possession of stolen goods. The larceny indictment specifically alleged that
defendant “unlawfully, willfully and feloniously did steal, take and carry away one
(1) television, the personal property of Sears Roebuck and Company, having a value
of One Thousand Six Hundred Ninety-Nine Dollars and Ninety-Nine Cents
($1,699.99).” Defendant was also indicted for having attained habitual felon status.
STATE V. SPEAS
Opinion of the Court
On 10 October 2017, defendant was convicted by a jury of both felonious
larceny and felonious possession of stolen goods. The trial court arrested judgment
on the charge of possession of stolen goods. Defendant subsequently pled guilty to
having attained the status of an habitual felon. The trial court sentenced defendant
to a term of 89 to 119 months imprisonment. Defendant appeals.
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On appeal, defendant’s sole argument is that the indictment for larceny is
fatally defective because it does not allege that “Sears Roebuck and Company” was
an entity capable of owning property. We disagree.
“It is well settled that a valid bill of indictment is essential to the jurisdiction
of the trial court to try an accused for a felony.” State v. Abraham, 338 N.C. 315, 339,
451 S.E.2d 131, 143 (1994) (citation and quotation marks omitted). “The purpose of
an indictment is to give a defendant notice of the crime for which he is being
charged[.]” State v. Bowen, 139 N.C. App. 18, 24, 533 S.E.2d 248, 252 (2000). An
“indictment must allege all of the essential elements of the crime sought to be
charged.” State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (citation
omitted). Lack of jurisdiction in the trial court due to a fatally defective indictment
requires the appellate court to arrest judgment or vacate any order entered without
authority. State v. Hicks, 148 N.C. App. 203, 205, 557 S.E.2d 594, 596 (2001).
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STATE V. SPEAS
Opinion of the Court
Here, defendant was indicted for felonious larceny. The essential elements of
larceny are: (1) the taking of the property of another; (2) carrying it away; (3) without
the owner’s consent; and (4) with the intent to permanently deprive the owner of the
property. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982), overruled on
other grounds by State v. Munford, 364 N.C. 394, 699 S.E.2d 911 (2010); see also N.C.
Gen. Stat. § 14-72 (2017). “To be sufficient, an indictment for larceny must allege the
owner or person in lawful possession of the stolen property. If the entity named in
the indictment is not a person, it must be alleged that the victim was a legal entity
capable of owning property[.]” State v. Phillips, 162 N.C. App. 719, 720–21, 592
S.E.2d 272, 273 (2004) (alteration in original) (internal citations and quotation marks
omitted). “If the property alleged to have been stolen . . . is the property of a
corporation, the name of the corporation should be given, and the fact that it is a
corporation stated, unless the name itself imports a corporation.” State v. Thornton,
251 N.C. 658, 662, 111 S.E.2d 901, 903 (1960) (internal citation and quotation marks
omitted).
The instant indictment charges defendant with larceny of the personal
property of “Sears Roebuck and Company.” Defendant contends that this is
insufficient because, although the indictment contains the word “company,” it does
not identify “Sears Roebuck and Company” as a company or other corporate entity.
We are not persuaded.
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STATE V. SPEAS
Opinion of the Court
In Thornton, the North Carolina Supreme Court determined that an
indictment which alleged defendant embezzled money belonging to “The Chuck
Wagon” was insufficient because it failed to sufficiently identify “The Chuck Wagon”
as a corporation, and the name itself did not import a corporation. Id. at 662, 111
S.E.2d at 904. By contrast, here, the word “company” is part of the name of the
property owner, “Sears Roebuck and Company.” Our Supreme Court has stated “the
words ‘corporation,’ ‘incorporated,’ ‘limited,’ or ‘company,’ or their abbreviated form,
sufficiently identify a corporation in an indictment.” State v. Campbell, 368 N.C. 83,
86, 772 S.E.2d 440, 443 (2015) (emphasis added) (citing Thornton, 251 N.C. at 662,
111 S.E.2d at 904); see also State v. Cave, 174 N.C. App. 580, 583, 621 S.E.2d 299,
301 (2005) (concluding that an indictment was sufficient because the name “N.C.
FYE, Inc.” imports a corporation).
Therefore, we conclude the name of the property owner named in the
indictment, “Sears Roebuck and Company,” was sufficient itself to “ ‘import[ ] an
association or a corporation capable of owning property.’ ” Id. at 83, 772 S.E.2d at
444 (quoting Thornton, 251 N.C. at 661, 111 S.E.2d at 903). Accordingly, we hold the
larceny indictment here is valid on its face.
NO ERROR.
Judges BERGER and MURPHY concur.
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