In Re Owens , 22 N.C. App. 313 ( 1974 )

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206 S.E.2d 342 (1974) 22 N.C. App. 313
In the Matter of Lorenzo OWENS, Juvenile.
No. 743DC544.
Court of Appeals of North Carolina.
July 3, 1974.
*343 Atty. Gen. Robert Morgan by Deputy Atty. Gen. Andrew A. Vanore, Jr., Raleigh, for the State.

Samuel J. Manning, Greenville, for the Juvenile.

BROCK, Chief Judge.

The conduct of Lorenzo Owens in being with James Allen Wilson on each occasion tends to throw a cloud of suspicion around him. However, suspicion is not enough. As Judge Wheeler announced at the beginning of the hearing: "The standard of proof in each of the cases is that of beyond a reasonable doubt."

Before the State was entitled to have the case considered by the finder of the facts, it was required to offer evidence of participation by Lorenzo Owens in the offense of larceny. We agree with Judge Wheeler that the State failed to offer evidence for submission to the finder of facts in the case involving larceny of the 1964 F-85 Oldsmobile. However, we disagree with Judge Wheeler in his denial of Lorenzo Owens' motion to dismiss the case involving larceny of the 1964 Chevrolet Nova, and we reverse in that case.

In the Petition considered by the trial judge, the allegation of delinquency was based only upon the allegation that the juvenile committed larceny of the 1964 Chevrolet Nova. Therefore, before it could be determined that the juvenile was delinquent it was necessary for the State to prove the larceny. We have held in In re Alexander, 8 N.C.App. 517, 174 S.E.2d *344 664, and In re Roberts, 8 N.C.App. 513, 174 S.E.2d 667, that the State must make out a prima facie case of the commission of the crime upon which a finding of delinquency is based. Otherwise, the petition based upon allegations that the juvenile committed a crime must be dismissed.

The facts in this case are strikingly similar to those in State v. Hughes, 16 N. C.App. 537, 192 S.E.2d 626. The State concedes it is unable to distinguish this case and the Hughes case. The evidence in this case merely shows that Lorenzo Owens was riding as a passenger in a stolen car. There was no evidence of conduct on his part that suggests a guilty mind. There is absolutely no evidence in this record that he was acting in concert with the driver, James Allen Wilson.

In our view, the motion of Lorenzo Owens to dismiss the petition alleging delinquency based upon larceny of the 1964 Chevrolet Nova should have been allowed.

Reversed.

BRITT and BALEY, JJ., concur.