#### STATE OF NORTH CAROLINA v. HAROLD R. HANEY, JR.

No. 7512SC554

(Filed 17 December 1975)

Larceny § 6 — larceny of motorcycle — value of motorcycle — incompetent evidence — no objection — consideration on question of nonsuit

In a prosecution for felonious larceny of a motorcycle, testimony by the owner that he would not sell his cycle for less than $2000 was incompetent on the issue of value of the motorcycle; however, incompetent evidence, if not objected to, may be considered by the court on the question of nonsuit and can be sufficient to take the case to the jury.

Appeal by defendant from Smith, Judge. Judgment entered 6 March 1975 in Superior Court, Cumberland County. Heard in the Court of Appeals 16 October 1975.

Defendant was tried on a bill of indictment charging him with the felonious larceny of a 1971 Harley-Davidson Sportster motorcycle having a value of $1,445.00. He was found guilty as charged. Judgment imposing a prison sentence, suspended on certain conditions was entered.

Attorney General Edmisten, by Assistant Attorney General Conrad O. Pearson and Associate Attorney T. Lawrence Pollard, for the State.

Smith & Geimer, P.A., by William S. Geimer, for defendant appellant.

VAUGHN, Judge.

Defendant urges that his motion for nonsuit should have been granted because he contends there was no evidence of the value of the stolen motorcycle. The following is how the evidence of value was developed:

> “Q. Do you have an opinion satisfactory to yourself as to the fair market value of the Harley Davidson Sports-ter motorcycle you owned on the 23rd of August on that day?

> A. Do I have one?

> Q. Yes.

> A. I would not sell it for no less than $2000.”

*223Appellant correctly argues that the word “value” as used in the statute does not mean the price at which the owner would sell, but means . . fair market value.” State v. Cook, 263 N.C. 730, 140 S.E. 2d 305. Nevertheless, the statement of the witness in response to the question of value was allowed to stand without exception or motion to strike. Incompetent evidence, if not objected to, may be considered by the court on the question of nonsuit and can be sufficient to take the case to the jury. The motion for nonsuit was properly overruled.

There was no evidence that the value of the stolen motorcycle was less than $200.00 and it was therefore, not prejudicial error to fail to instruct the jury on misdemeanor larceny.

We find no error in defendant’s trial.

No error.

Judges Britt and Arnold concur.