34 N.C. App. 589 | N.C. Ct. App. | 1977
Defendant contends first that the court erred in denying his motion to dismiss the indictment on the ground of double jeopardy. We find no merit in this contention.
Defendant argues that the misdemeanor larceny action under G.S. 14-72, which was dismissed by the district court, was a lesser included offense of the felony charge of larceny by an employee under G.S. 14-74, and that the dismissal of the lesser offense should bar prosecution on the greater offense. In support of his argument, he cites State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838, 6 A.L.R. 3d 888 (1962). We think the Birckhead lesser degree rule is inapplicable to the present case.
It is a well settled rule in North Carolina that “the two prosecutions must be for the same offense— the same both in law and
Applying these principles to the present case, it is noted that the misdemeanor larceny case in which defendant received a dismissal was based on G.S. 14-72. A conviction under that statute requires that either an actual or constructive trespass be shown. State v. Bowers, 273 N.C. 652, 161 S.E. 2d 11 (1968). In the case at hand defendant was charged with larceny by an employee under G.S. 14-74 which requires by its express terms that the larceny be committed in violation of a trust relationship between the employee and the employer. State v. Wilson, 101 N.C. 730, 7 S.E. 872 (1898). Since the element of trespass required in G.S. 14-72 is not required for prosecution under G.S. 14-74, and the element of trust required under G.S. 14-74 is not required in G.S. 14-72, the dismissal of the charge under G.S. 14-72 cannot be considered a prior adjudication which would bar prosecution under G.S. 14-74.
Defendant’s second contention is that the court committed reversible error by failing to exclude irrelevant evidence in the nature of alleged prior acts of misconduct. He argues that such evidence created a substantial likelihood that it would be considered by the jury as substantive evidence of the guilt of the offense for which he was on trial. This contention relates to evidence concerning the $360.40 note which defendant signed to reimburse the company for money which disappeared while he was on duty on 31 July 1976. We find no merit in this contention.
The record reveals that defendant was asked on cross-examination about the 31 July 1976 incident; his counsel objected to the question but defendant stated that he would like to answer. He then proceeded to answer questions about the matter without further objection. Thereafter, testimony was given without objection by the station manager about the matter.
Clearly, defendant waived his objection to the testimony. Furthermore, it is well settled that the admission of testimony
Defendant next contends that the court erred in admitting into evidence the inventory sheet on which the station manager had calculated the amount of money which was missing. He argues that the sheet was not admissible as corroborative evidence and that sufficient foundation was not laid to establish the hearsay rule exception for business records or to establish past recollection recorded. We find no merit in this contention.
The trial judge properly allowed the inventory sheet to be introduced to corroborate the station manager’s testimony concerning the missing money. “In most jurisdictions evidence in support of a witness’s credibility will not be received unless he has been directly impeached, and then only under more or less severe restrictions. In North Carolina, however, the utmost latitude is allowed. . . . Indeed, the more recent cases tend to ignore the requirement of impeachment altogether.” 2 Stansbury’s N.C. Evidence § 50 (Brandis rev. 1973). See Chesson v. Insurance Co., 268 N.C. 98, 150 S.E. 2d 40 (1966). In State v. Rose, 251 N.C. 281, 111 S.E. 2d 311 (1959), the court allowed affidavits of police officers to corroborate their testimony and noted that the application of the rule regarding the admission or exclusion of corroborative evidence was a subject which necessarily rested in large measure as a discretionary matter with the trial judge. We perceive no abuse of discretion.
Finally, defendant contends that the trial court erred in denying his motions for nonsuit because the evidence failed to show that he was an employee of Service Distributing Company at the time he placed the billfold and the coin changer in the towel dispenser. We find no merit in this contention.
The evidence that defendant was entrusted with company money as an employee on the morning of 26 August 1977, that he placed money in the towel dispenser before leaving his work, and that he then telephoned the manager later that morning to notify him that he was quitting, was sufficient to establish defendant’s status as a company employee at the time he placed the money in the towel dispenser, and to overcome his motions for nonsuit.
No error.