State v. Harrington

15 N.C. App. 602 | N.C. Ct. App. | 1972

BROCK, Judge.

Defendant’s argument is, in effect, a motion to quash the indictment and arrest judgment. He argues that the bill of indictment does not allege facts sufficient to constitute a criminal offense.

The bill of indictment describes the motor vehicle in detail as “a 1969 Oldsmobile, 4-door Sedan, Aztec Gold in color, Serial No. 364699 D136524, N. C. Motor Vehicle Registration No. HF-3400, in the possesion of one Durwood Emmett Stroud . ...” It is defendant’s argument that the failure to allege technical ownership of the motor vehicle constitutes a fatal defect. Defendant is not precluded by his plea of guilty from claiming that the facts alleged in the indictment do not constitute a crime under the laws of this State. State v. Elliott, 269 N.C. 683, 153 S.E. 2d 330.

Defendant argues that technical ownership of the motor vehicle must be alleged in order to negate ownership- in the defendant, because defendant could not be guilty of the offense if he broke and entered his own vehicle. However, the gravamen of the offense with which defendant is charged is the breaking and entering with intent to commit larceny. The bill of indictment in this case specifically lays the ownership of the property contained in the motor vehicle in Durwood Emmett Stroud. It thereby clearly negates the possibility of defendant breaking and entering the vehicle to steal his own property.

The motor vehicle involved is described in detail and its possession is alleged to be in Durwood Emmett Stroud. The technical ownership of the vehicle broken into is immaterial.

No error.

Judges Morris and Hedrick concur.