{
  "id": 8547985,
  "name": "STATE OF NORTH CAROLINA v. DONALD R. KAERNER",
  "name_abbreviation": "State v. Kaerner",
  "decision_date": "1975-12-17",
  "docket_number": "No. 754SC687",
  "first_page": "223",
  "last_page": "224",
  "citations": [
    {
      "type": "official",
      "cite": "28 N.C. App. 223"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "188 S.E. 2d 754",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "14 N.C. App. 633",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8552109
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      "case_paths": [
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    {
      "cite": "139 S.E. 2d 739",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "263 N.C. 490",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571134
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/263/0490-01"
      ]
    },
    {
      "cite": "167 S.E. 63",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "203 N.C. 829",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8621265
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/203/0829-01"
      ]
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  "analysis": {
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  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Martin and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DONALD R. KAERNER"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant contends and the State concedes that at the time of this offense, the unlawful taking of a motor vehicle under former G.S. 20-105 was not a lesser included offense of felonious larceny. We agree.\nSince the offense was committed before 1 January 1975, an indictment for larceny will not support a conviction for the unlawful taking of a motor vehicle in violation of G.S. 20-105 [repeal effective 1 January 1975]. State v. Stinnett, 203 N.C. 829, 167 S.E. 63; State v. McCrary, 263 N.C. 490, 139 S.E. 2d 739; State v. Campbell, 14 N.C. App. 633, 188 S.E. 2d 754.\nThe court instructed the jury:\n\u201c ... if you return a verdict of not guilty of felonious larceny, you would consider whether or not the defendant is guilty of the unlawful taking of a vehicle which is a lesser included offense within the charge of larceny which I referred to.\u201d (Emphasis added.)\nThe instruction is erroneous.\nOn 1 January 1975, G.S. 14-72.2 entitled \u201cUnauthorized use of a conveyance\u201d became effective. Subsection (d) expressly provides that, an offense under G.S. 14-72.2 may be treated as a\u201clesser-included offense of the offense of larceny of a conveyance.\u201d Defendant in this case was charged with an offense that was alleged to have occurred in October, 1974.\nThe judgment is vacated and the case is remanded.\nVacated and remanded.\nJudges Martin and Clark concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorneys Daniel C. Oakley and Jo Anne Sanford Routh, for the State.",
      "Grady Mercer, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DONALD R. KAERNER\nNo. 754SC687\n(Filed 17 December 1975)\nLarceny \u00a7 3 \u2014 felonious larceny \u2014 unlawful taking of vehicle \u2014 no lesser included offense\nAt the time the offense charged was committed, the unlawful taking of a motor vehicle under former G.S. 20-105 was not a lesser included offense of felonious larceny; therefore, the trial court in this felonious larceny prosecution erred in submitting to the jury as a possible verdict defendant\u2019s guilt of the unlawful taking of a vehicle.\nON certiorari to review trial before Martin, (Perry), Judge. Judgment entered 9 January 1975 in Superior Court, Onslow County. Heard in the Court of Appeals 20 November 1975.\nDefendant was charged in a bill of indictment with felonious breaking and entering and felonious larceny. The breaking and entering charge was nonsuited at the close of the State\u2019s evidence. The jury found the defendant guilty of \u201cthe unlawful taking\u201d of a motor vehicle.\nFrom the finding of guilt and the imposition of a prison sentence, defendant appealed.\nAttorney General Edmisten, by Associate Attorneys Daniel C. Oakley and Jo Anne Sanford Routh, for the State.\nGrady Mercer, Jr., for defendant appellant."
  },
  "file_name": "0223-01",
  "first_page_order": 251,
  "last_page_order": 252
}