47 N.C. App. 303 | N.C. Ct. App. | 1980
Defendant brings forward eight assignments of error in the trial below. We find the assigned errors without merit.
Defendant contends the courts of this State were without jurisdiction over the crimes of breaking and entering of and larceny from the Maury Post Office. The Congress has passed laws to protect United States post offices from breaking and entering and larceny. 18 U.S.C. §§ 2115, 1707. Our State, in compliance with clause seventeen, section eight of the first article of the United States Constitution, consents to the acquisition of lands within the State by the United States and cedes exclusive jurisdiction, except for service of civil and criminal process, over lands so acquired to the federal government. G.S. 104-7. The United States may accept exclusive or partial jurisdiction over lands acquired within a state and 40 U.S.C. § 255 provides that exclusive or partial jurisdiction may be accepted by giving written notice to the governor of the state
The arrest of defendant was without a warrant in the home of a friend. Defendant argues illegality in the arrest because the officer lacked probable cause to arrest defendant. According to the arresting officer, he questioned defendant’s friend, Tyson, after giving him Miranda warnings about his rights. Tyson then told the officer about the crimes and defendant’s involvement therein. The officer testified he was afraid defendant would avoid apprehension if not then arrested because defendant had seen his friend Tyson arrested and because de
Defendant contends there is a fatal variance between the allegations of the indictments and the proof at trial. The bill of indictment concerning the theft from the post office building alleged the stolen money and radio were “the personal property of Maury Post Office a division of the United States Postal Service.” The evidence was to the effect that the money and radio were the personal property of the postmaster. The fact that the indictment charges defendant with larceny from the post office where evidence is that the post office is not the owner of such property is not a fatal defect in such a case as this where the property stolen was owned by the postmaster and he had left the property in the post office. The post office was in lawful custody and possession of the property at the time it was taken and the indictment is not invalid. State v. Hauser, 183 N.C. 769, 111 S.E. 349 (1922); State v. Robinette, 33 N.C. App. 42, 234 S.E. 2d 28 (1977); State v. Dees, 14 N.C. App. 110, 187 S.E. 2d 433 (1972). The other felonious larceny indictment alleged the tire tool to be “the personal property of L. A. Moye, L. A. Moye, Jr., and C. L. Stokes t/a Moye and Stokes Store.” The evidence showed that Charles Stokes owned the warehouse from which the tire tool was taken. There is no fatal variance where as here the indictment alleges ownership in the owners of a business and the proof is that it is taken from the property of one owner personally. State v. Smith, 4 N.C. App. 261, 166 S.E. 2d 473 (1969). Finally, the third indictment alleged the breaking and entering of a “building occupied by Julian Jones used as a garage.” The evidence was that the building was a storage shed and was not used by Mr. Jones since his health had declined. We find no fatal variance in this indictment. For felonious breaking and entering with intent to steal, it is not incumbent on the State to establish the owner of the property defendant intended to steal but only the intent to steal upon breaking or entering. State v.
The grand jury indictments of defendant concerning the crimes committed at the post office and the Moye and Stokes Store contained multiple counts for felonious breaking and entering, felonious larceny, felonious receiving and felonious possession. Prior to trial, defendant moved to dismiss these indictments on the grounds defendant could not be guilty of both the larceny and the receipt of the stolen goods. The trial court reserved ruling on this motion. The prosecutor then indicated the State would proceed on the breaking, entering and larceny counts of the indictments. At the close of the evidence, the trial court ruled it would not charge the jury on the felonious receiving and possession counts leaving the felonious breaking, entering and larceny counts to go to the jury. Defendant contends it was error for the trial judge to reserve ruling on this motion. There is no merit to this argument. A defendant may be found guilty of larceny or receiving but not both. State v. Meshaw, 246 N.C. 205, 98 S.E. 2d 13 (1957). An indictment or a jury charge of both larceny and receiving is not improper, depending upon the evidence presented of the two crimes. Consequently, it was not error for the trial court to reserve ruling on the dismissal motion until the evidence indicated whether there was sufficient proof to go to the jury on the crimes properly charged in the indictment.
Defendant in two assignments of error attacks the admissibility of his statement to the arresting officer (1) because it was given without proper Miranda warnings or adherence to defendant’s right to have counsel present at questioning if requested, and (2) because it was not freely and voluntarily given. We find no merit in these arguments. The record indicates defendant was advised of his Miranda rights and stated he wanted to talk to a lawyer but then changed his mind. Defendant was then advised of his rights and expressly waived his right to counsel in a signed written waiver.
Even if we assume that the defendant did request counsel when first advised of his rights, this does not make his subsequent statements inadmissible since the defendant*309 initiated the subsequent conversation with officers himself, was once again fully informed of his rights, and expressly waived the right to have counsel present.
State v. Hill, 294 N.C. 320, 328, 240 S.E. 2d 794, 800 (1978). The evidence is in conflict on whether the officer induced the confession by saying he would put in a good word for defendant in court if he confessed. The trial court found there was no such inducement and his finding is supported by ample evidence in the record. The officer specifically denied making any such inducement to defendant. The trial court’s finding that defendant’s confession was freely and voluntarily made is, therefore, conclusive on appeal. State v. Rogers, 23 N.C. App. 142, 208 S.E. 2d 384, cert. den., 286 N.C. 213, 209 S.E. 2d 318 (1974). Defendant’s statement was properly admitted into evidence.
When the trial judge summarized the evidence in his charge to the jury, he stated, “[t]he State has offered evidence tending to show ... that [defendant] confessed to the breaking and entering of these places and taking of a radio.” (Emphasis added). Defendant objected to the use of the word “confessed” in the charge to which the trial judge replied, “Well, that’s what it is.” Defendant contends this constitutes a prejudicial expression of opinion in violation of G.S. 15A-1232. The statement the officer said defendant made to him which defendant denied making at trial does amount to a confession and certainly “tends to show ... that he confessed to the breaking and entering.” The trial judge’s response to defendant’s objection did not constitute prejudicial error in light of the context of the charge. State v. Hamilton, 298 N.C. 238, 258 S.E. 2d 350 (1979).
The sentence of not less than seven nor more than ten years by the trial judge was within the maximum limits of punishment for one count of breaking and entering a building with intent to commit a larceny, G.S. 14-54, and two counts of larceny upon breaking and entering a building, G.S. 14-72(b)(2). The maximum punishment and a fine for each felony is ten years imprisonment. G.S. 14-2. The trial judge could have sentenced defendant to thirty years imprisonment by imposing consecutive sentences. Rather, he, in his discretion which he did not abuse, consolidated all of the charges and sentenced defendant
No error.
