State v. Killian

282 N.C. 138 | N.C. | 1972

SHARP, Justice.

The only question presented by this appeal is whether the State’s evidence is sufficient to withstand defendant’s motions for nonsuit. The answer is No.

Taking the evidence as true and considering it in the light most favorable to the State, it is sufficient to establish the following facts:

Crowell left two young women in his apartment about 5:30 or 5:45 p.m. About 6:00 p.m. police officers entered the apartment through the back door, which they found unlocked. Shortly before they came to the back door a glass pane in the door had been broken from the inside, probably with the bottle found on the steps. As Officer Miller turned the door knob to enter, defendant slammed the door shut and ran from the kitchen. The officers entered in time to see him run into the bedroom, jump through a closed, glass-paned window, and flee down the steep incline back of the row of apartments. At that time there were two nude white women in the bedroom. Miller and other officers pursued defendant. He was eventually caught and searched. On his person Officer Frye found a wedding ring set. Earlier that same day, Crowell had lent these rings, the property of his wife, to Nathaniel Phifer “to get married in.” Crowell did not know defendant and had not given him permission to enter the apartment.

This evidence strongly suggests that 2822-B Horne Drive was a place of prostitution, and it proves that defendant did not want to explain his presence there to the police. However, with reference to the charges in the indictment, it raises material questions which remain unanswered. The first is, where and how did defendant get the rings? Under the circumstances disclosed, Crowell’s testimony that “to the best of his knowledge” the rings were in his apartment about 5:45 that evening is merely one way of saying he did not know whether they were there or not. Prior to the time he delivered the girls to his apartment he had not been there that day. He was careful not to say that he had left the rings there. Further, his answers to the obfuscating questions propounded by the prosecutor fall far short of a prima facie showing that Phifer and his bride had been in the apartment “prior to this” on that day. While Crowell said he did not know defendant, there is no evidence that defendant and Phifer were strangers; nor is there evidence that they were acquainted.

If, perchance, the Phifers had been in the bedroom and left the rings there, defendant had obtained them before the officers arrived, for he picked up nothing but his feet thereafter. Without some evidence that defendant got the rings from Crowell’s apartment there is no reason to suspect that he obtained them by theft. If he got possession of them there, the more reasonable inference would be that it was with the knowledge and consent of the two women. However, the evidence does not disclose for what purpose or from whom he got them. Likewise, it gives no clue why defendant broke either the soft drink bottle or the pane in the unlocked kitchen door.

The State failed to call as witnesses the two women whom the officers found in the bedroom. Although they might not have been able to explain defendant’s possession of the rings they undoubtedly could have clarified the manner of his entrance into the apartment and perhaps the purpose of his visit. While conceding that the fantastic situation the officers found defies analysis, we concur with Judge Brock that the more reasonable inference arising from the evidence is that defendant entered the apartment with the consent of the two women, and that his purpose was not to steal.

We hold that the State failed to make a prima facie showing either that defendant broke or entered the Crowell apartment with the intent to steal or that he was guilty of the larceny of the rings. This conclusion makes unnecessary any discussion of defendant’s argument that, because the evidence disclosed the rings were the property of Crowell’s wife, there was a fatal variance between the charge and the proof on the count of larceny. As to this contention see State v. Smith, 266 N.C. 747, 147 S.E. 2d 165 (1966); State v. Law, 228 N.C. 443, 45 S.E. 2d 374 (1947); State v. Hauser, 183 N.C. 769, 111 S.E. 349 (1922); State v. Bishop, 98 N.C. 773, 4 S.E. 357 (1887); 52A C.J.S. Larceny §§ 81 (2) d, 99b (2) (1968).

The decision of the Court of Appeals is

Reversed.