14 N.C. App. 446 | N.C. Ct. App. | 1972
Dissenting Opinion
dissenting.
The State’s witness John Crowell left two women in his extra apartment along with his wife’s wedding rings. Ostensibly he left them in charge of the apartment and its contents, including his wife’s wedding rings. After that he does not know what happened and the State’s evidence does not enlighten us. The broken glass bottle and door pane are suspicious circumstances particularly when defendant’s prints were found on the
. It seems significant that the two nude women in the apartment with defendant were making no outcry or protest so far as the evidence discloses. It seems significant that the wedding rings were not picked up by defendant when he ran through the bedroom in an effort to elude the police. The inference from the evidence is that he was in the bedrom with the two nude women at some time before the police arrived and that he acquired possession of the rings in a manner and for a reason not explained. The State did not see fit to call as witnesses the two women who were in position to know what happened.
It seems to me that the more reasonable inference from this evidence is that the two women for some reason invited defendant into the apartment and for some reason allowed defendant to obtain possession of the rings.
The bizarre circumstances created by the extra activities of State’s witness John Crowell led one to believe that all was not well with the use of his extra apartment at 2322-B Horne Drive. However, I feel that the State fell short of establishing a ‘prima, facie case of breaking or unlawfully entering, or of larceny against defendant. It seems to me that defendant’s flight through the top sash of the bedroom window and his extended footrace with the police are the most damaging evidence against him. But, they prove nothing except that defendant was up to something that he did not want to discuss with the police.
Lead Opinion
The defendant assigns as error the Court’s denial of his timely motion for judgment as of nonsuit. Although the evidence in this case reveals a rather bizarre situation, we think it sufficient to require the submission of the case to the jury and to support the verdict.
The defendant contends:
“. . . (T)he Court erred in denying defendant’s motion in arrest of judgment as pronounced in this case because of a material variance in the bill of indictment and the proof of ownership of property alleged stolen.”
In State v. Cotten, 2 N.C. App. 305, 163 S.E. 2d 100 (1968), it is said:
“The fact that an indictment charges a defendant with larceny of property from a specified person and the evidence discloses that such person is not the owner but is in lawful possession at the time of the offense, does not render the indictment invalid. There is no fatal variance, since the unlawful taking from the person in lawful custody and control of the property is sufficient to support the charge of larceny. State v. Smith, 266 N.C. 747, 147 S.E. 2d 165.”
This assignment of error is not sustained.
We hold the defendant had a fair trial free from prejudicial error.