{ "id": 8553491, "name": "STATE OF NORTH CAROLINA v. EDWARD EARL DANIELS", "name_abbreviation": "State v. Daniels", "decision_date": "1979-11-06", "docket_number": "No. 793SC521", "first_page": "556", "last_page": "558", "citations": [ { "type": "official", "cite": "43 N.C. App. 556" } ], "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": "1 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12124466, 12122539, 12124639 ], "weight": 2, "year": 1792, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc/1/0036-01", "/nc/1/0036-01", "/nc/1/0036-02" ] }, { "cite": "213 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554170 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0412-01" ] }, { "cite": "238 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548937 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0336-01" ] }, { "cite": "239 S.E. 2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550709 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0589-01" ] }, { "cite": "7 S.E. 872", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1888, "opinion_index": 0 }, { "cite": "101 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651602 ], "year": 1888, "opinion_index": 0, "case_paths": [ "/nc/101/0730-01" ] }, { "cite": "231 S.E. 2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "291 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558813 ], "year": 1977, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0586-01" ] } ], "analysis": { "cardinality": 312, "char_count": 4354, "ocr_confidence": 0.822, "pagerank": { "raw": 2.5551433973563335e-07, "percentile": 0.8148013648672181 }, "sha256": "d9ee2ed3eceb6179944d4e4a4896c8a577778eb183ac0bf78cb67f17fa5ba987", "simhash": "1:95b565e715a17d9d", "word_count": 739 }, "last_updated": "2023-07-14T16:43:38.047576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CLARK and MARTIN (Harry C.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD EARL DANIELS" ], "opinions": [ { "text": "HEDRICK, Judge.\nWhen we consider the record on appeal \u2014 the indictment, the verdict and the judgment \u2014 we find fatal error. The defendant was charged in the bill of indictment with larceny by an employee, G.S. \u00a7 14-74. The jury found him guilty of \u201clarceny,\u201d and the judgment recites that he was convicted of \u201cmisdemeanor larceny.\u201d\nIt is hornbook law that \u201can indictment will not support a conviction for a crime all the elements of which crime are not accurately and clearly alleged in the indictment.\u201d State v. Perry, 291 N.C. 586, 592, 231 S.E. 2d 262, 266 (1977), and cases cited therein. The bill of indictment in the case at bar charged defendant only with the statutory offense of larceny by an employee. The elements of that offense are clearly set out in the statute and include as one essential component that the employee initially possess the goods lawfully by virtue of having been entrusted with their possession by his employer. G.S. \u00a7 14-74; State v. Wilson, 101 N.C. 730, 7 S.E. 872 (1888). While the evidence adduced at trial in this case was sufficient to support a conviction of the offense charged, the judge instructed the jury that they could return one of three verdicts: \u201cGuilty of larceny by an employee, guilty of larceny, not guilty.\u201d Thereafter, he charged as to the elements of larceny, and the jury subsequently returned a verdict of \u201cguilty of larceny.\u201d That is, the jury found the defendant guilty of common law larceny.\nWe first point out that a conviction of the offense of larceny, either at common law or under G.S. \u00a7 14-72, requires that a trespass, actual or constructive, be shown. State v. Bullin, 34 N.C. App. 589, 239 S.E. 2d 278 (1977); State v. Babb, 34 N.C. App. 336, 238 S.E. 2d 308 (1977); State v. Bailey, 25 N.C. App. 412, 213 S.E. 2d 400 (1975). Not only is this element different from the essential elements of the offense under G.S. \u00a7 14-74, it is completely inconsistent with that statute\u2019s requirement that the employee gain possession lawfully. The two are wholly separate offenses, and each requires different evidentiary showings. In short, larceny is not a lesser-included offense of larceny by an employee.\nThus, it is not necessary for us to determine whether the evidence in this case could have adequately supported a conviction of larceny, and we express no opinion as to that question. The resolution of the issue raised by this appeal is governed by a fundamental rule of law which was laid down by our Supreme Court as early as 1792 and which had developed under English law as early as 1470. The defendant herein cannot be found \u201cguilty of larceny\u201d because the offense of larceny is not charged in the indictment. State v. Higgins, 1 N.C. 36 (1792). \u201c[I]t is still necessary that the technical words, requisite in the description of the offense . . ., be inserted in the indictment.\u201d Id. at 47.\nSince a fatal variance between the indictment and the verdict thereby appears, this Court, ex mero motu, arrests the judgment.\nJudgment arrested.\nJudges CLARK and MARTIN (Harry C.) concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.", "Willis A. Tait\u00f3n for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD EARL DANIELS\nNo. 793SC521\n(Filed 6 November 1979)\nLarceny \u00a7 1; Indictment and Warrant \u00a7 17.1\u2014 larceny by employee charged \u2014 conviction of common law larceny improper\nWhere defendant was charged with larceny by an employee pursuant to G.S. 14-74, he could not be convicted of common law larceny, since the two offenses are wholly separate offenses, each requiring different evidentiary showings.\nAPPEAL by defendant from Rouse, Judge. Judgment entered 8 December 1978 in Superior Court, PITT County. Heard in the Court of Appeals on 17 October 1979.\nDefendant was charged in a bill of indictment as follows:\n[0]n or about the 27th day of July, 1978, in Pitt County Edward Earl Daniels unlawfully and wilfully did feloniously while being an employee of Eastern Lumber and Supply Co., Inc., . . . take, steal and carry away and convert to his own use one hundred (100) CM 7629AE hinges, having a value of $52.40, delivered to him to be kept for the use of . . . his employer.\nUpon defendant\u2019s plea of not guilty, he was tried before a jury and found guilty of \u201clarceny.\u201d From a sentence imposing 18 to 24 months\u2019 imprisonment, he appealed.\nAttorney General Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.\nWillis A. Tait\u00f3n for defendant appellant." }, "file_name": "0556-01", "first_page_order": 584, "last_page_order": 586 }