State v. Blythe

85 N.C. App. 341 | N.C. Ct. App. | 1987

MARTIN, Judge.

The single issue presented by this appeal is whether defendants could properly be convicted of possession of stolen goods based upon the indictments returned against them. For the following reasons, we hold that the trial court erred in submitting to the jury the issue of defendants’ guilt of the offense of possession of stolen goods and in denying defendants’ motion to arrest judgment.

Receiving stolen goods and possession of stolen goods are separate and independent statutory offenses under G.S. 14-71 and 71.1, neither of which is a lesser-included offense of the other. State v. Davis, 302 N.C. 370, 275 S.E. 2d 491 (1981). Our Supreme Court has held, therefore, that a defendant cannot be convicted of possession of stolen goods on an indictment charging him with receiving stolen goods. Id.

The purpose of an indictment is (1) to give the defendant notice of the charge against him in plain intelligible and explicit language so that he may prepare his defense and be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; and (2) to enable the court to pronounce judgment in the event of a conviction. State v. Dorsett, 272 N.C. 227, 158 S.E. 2d 15 (1967); State v. McBane, 276 N.C. 60, 170 S.E. 2d 913 (1969). The indictments in the present case are captioned “Receiving Stolen Goods.” The indictment of defendant Blythe specifically charges him with violation of G.S. 14-71, which makes it a crime for one to receive stolen goods. The bodies of the indictments charge that defendants did “receive and have” stolen goods. An indictment containing identical “receive and have” language has been held sufficient to charge one with receiving stolen goods. State v. Matthews, 267 N.C. 244, 148 S.E. 2d 38 (1966). Defendants had no reason to believe that they were being charged with anything other than receiving stolen goods in violation of G.S. 14-71.

The State argues, however, that the use of the word “have” in the indictments was sufficient to charge defendants with possession of stolen goods in violation of G.S. 14-71.1. We disagree. As noted, supra, both receiving stolen goods and possession of stolen goods are offenses created by statute. “Where the words of a statute are descriptive of the offense, the indictment should follow the language and expressly charge the described offense on the defendant, so as to bring it within all the material words of the statute.” (Emphasis added.) State v. Liles, 78 N.C. 496, 498 (1878); State v. Gibbs, 234 N.C. 259, 66 S.E. 2d 883 (1951). The statutory provisions of G.S. 14-71 and 71.1 are identical except for the substitution of the words “possess” and “possessor” in G.S. 14-71.1 for the words “receive” and “receiver” in G.S. 14-71. State v. Davis, supra. The words “receive” and “possess” are thus material words which must be used in indictments to distinguish the two offenses. The word “have” in the present indictment is surplusage.

The court lacked jurisdiction to try, convict and sentence defendants for possession of stolen goods on indictments charging them with receiving stolen goods. The defendants’ judgments must be arrested.

Judgments arrested.

Judges Wells and Johnson concur.