State v. Brown
301 S.E.2d 89
N.C.
1983
Check Treatment
*183 COPELAND, Justice.

In defendant’s first assignment of error he contends that the trial court erred in denying his motion to dismiss the charge of burning personal property. The basis of this contention is that the State failed to present evidence, independent of defendant’s confession, which establishes that the crime of burning personal property was committed. Upon review of the evidence we agree with defendant’s contention.

The rule in this State is, “[T]he State must establish two propositions in the prosecution of a criminal charge: (1) that a crime has been committed; and (2) that it was committed by the person charged.” State v. Chapman, 293 N.C. 585, 587, 238 S.E. 2d 784, 786 (1977); State v. Bass, 253 N.C. 318, 116 S.E. 2d 772 (1960). The first element, that a crime be shown to have been committed is called the corpus delicti. Corpus delicti is defined as, “the substance or foundation of a crime; the substantial fact that a crime has been committed.” Black’s Law Dictionary 310 (5th ed. 1979).

In North Carolina, “a conviction cannot be sustained upon a naked extra-judicial confession. There must be independent proof, either direct or circumstantial, of the corpus delicti in order for the conviction to be sustained.” State v. Green, 295 N.C. 244, 248, 244 S.E. 2d 369, 371 (1978); State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975). Even though the defendant’s confession identifies him as the person who committed the burning, the State must first establish the corpus delicti, that a crime was in fact committed.

The corpus delicti in this case is the criminal burning of personal property, to-wit Cindy Blackman’s mobile home. There is no dispute either that Ms. Blackman’s mobile home was destroyed by fire or that the origin of the fire was never discovered. The State presented evidence designed to show that the fire was most probably not the result of some condition present inside the mobile home. However, the State’s evidence was insufficient to show the fire had a criminal origin. In fact it is just as reasonable to assume from the State’s evidence that the fire was the result of a negligent act or an accident. “|I]f nothing more appears, the presumption is that the fire was the result of accident or some providential cause.” Phelps v. Winston-Salem, 272 N.C. 24, 31, 157 *184 S.E. 2d 719, 724 (1967). The most the State has shown in this case is that the fire could have possibly been the result of a criminal act. “Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.” State v. Minor, 290 N.C. 68, 75, 224 S.E. 2d 180, 185 (1976). As a result we hold that the conviction for burning personal property must be vacated.

In his second assignment of error defendant contends that the felonious breaking or entering conviction must be vacated because that conviction is inconsistent with his acquittal on the felonious larceny charge. Although the not guilty verdict on the felonious larceny charge is not inconsistent with the guilty verdict on felonious breaking or entering as defendant contends, “a jury is not required to be consistent and mere inconsistency will not invalidate the verdict.” State v. Davis, 214 N.C. 787, 794, 1 S.E. 2d 104, 108 (1939).

The verdicts in this case are not inconsistent because they involve two separate and distinct crimes. The first verdict concerns felonious breaking or entering as prohibited by G.S. 14-54(a) whereas the second verdict concerns larceny as prohibited by G.S. 14-72. “If two statutes are violated, even by a single act, and each offense requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the one statute.” State v. Malpass, 189 N.C. 349, 355, 127 S.E. 248, 252 (1925); State v. Stevens, 114 N.C. 873, 19 S.E. 861 (1894). The crime of larceny has an element not present in the crime of felonious breaking or entering, to wit a wrongful taking and carrying away of the personal property of another. State v. Bowers, 273 N.C. 652, 161 S.E. 2d 11 (1968). As a result it is not inconsistent for the jury to determine that the defendant entered the mobile home with the intent to commit larceny yet find that no larceny was in fact committed.

In the case sub judice there was sufficient evidence for the jury to convict the defendant on both the felonious larceny charge and the felonious breaking or entering charge. Although the acquittal on the larceny charge was charitable, it was not legally inconsistent. Therefore, this assignment of error is overruled.

Affirmed in part and reversed in part.