{ "id": 8548484, "name": "STATE OF NORTH CAROLINA v. WILLIAM DOSS and BAXTER HUNSUCKER", "name_abbreviation": "State v. Doss", "decision_date": "1969-06-18", "docket_number": "No. 6919SC230", "first_page": "146", "last_page": "150", "citations": [ { "type": "official", "cite": "5 N.C. App. 146" } ], "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": "165 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557792 ], "opinion_index": 0, "case_paths": [ "/nc/275/0069-01" ] }, { "cite": "146 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562370 ], "opinion_index": 0, "case_paths": [ "/nc/266/0643-01" ] } ], "analysis": { "cardinality": 483, "char_count": 9927, "ocr_confidence": 0.583, "pagerank": { "raw": 1.066301357385637e-07, "percentile": 0.5584740654764042 }, "sha256": "75b01c2d22614b8fa3e88107f578fb738cb91ea4c79d21a0ac1533e8b024290e", "simhash": "1:13ef1a6c4b3d9e12", "word_count": 1819 }, "last_updated": "2023-07-14T22:58:43.915660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and Beitt, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM DOSS and BAXTER HUNSUCKER" ], "opinions": [ { "text": "Moeris, J.\nAppeal of Doss\nDefendant Doss assigned as error on appeal the failure of the court to grant his motion for nonsuit and certain portions of the charge of the court. He has elected to abandon his assignments of error as they relate to the charge, but earnestly contends that it was error for his case to be submitted to the jury.\nThe evidence, taken in the light most favorable to the State, tends to show:\nRichard D. Barnhardt lives at 1042 McClinton Road in Kannap-olis. When he left his home on the afternoon of 4 December 1967, the doors to the house were locked and the screens latched. When he returned some time after 11 o\u2019clock that night he found that a latch on the window in the bedroom had been broken, the screen taken off, and the curtain torn. A television set and a shotgun had been taken, and these items were identified by him at the trial. Defendant Doss is his next door neighbor.\nClaude King testified for the State that he knows both defendants, that they came to his home on 4 or 5 December 1967 between 10:30 and 11:30 p.m. and asked him to go pull Doss\u2019s car which was disabled. He didn\u2019t know who was driving, but they were driving a car which belonged to Hunsucker. He was in bed when they came and they waited for him to dress. Hunsucker said that the voltage regulator on his car wasn\u2019t working and he asked if he could park his car at King\u2019s house that night. King agreed. Hunsucker then said he had some items in the car he wanted to leave with King so they wouldn\u2019t be taken from the car. Hunsucker then went out to the car and brought in a television set and a gun. The witness then took the defendants in his truck to Doss\u2019s car which was sitting in a driveway across from Hunsucker\u2019s house and pulled it from there to Doss\u2019s house. It was between 10:30 and 11:30 when the two came to his home and between 11 and 12 o\u2019clock when they got to Doss\u2019s house. He returned to his home after pulling Doss\u2019s car to Doss\u2019s house. A day or two later Hunsucker came to his house and got the gun. Detective Tucker came and got the television set.\nMr. Joseph Yoss testified that he asked Hunsucker if he knew anybody who had a shotgun or a rifle for sale, and Hunsucker said he\u2019d check on it. Later in the week and on Thursday night, he stopped by Hunsucker\u2019s house and Hunsucker told him he knew a man who had a shotgun for sale for fifty dollars. They went to a house in the Jackson Park area, Hunsucker went in and got the shotgun. The witness told him he\u2019d try it out Friday night. Hunsucker told him to let him have the gun back or the money by Saturday morning, that he had to return it. On Friday night near dark Hunsucker came to his home and said Police Officer Tucker was out there and wanted the shotgun, that it was stolen.\nOfficer Tucker testified that he went to Hunsucker\u2019s house on 8 December and asked if he had picked up a shotgun from Claude King\u2019s house. Hunsucker said that he had and had sold it to Joe Yoss. Hunsucker went with him to Yoss\u2019s home where Mr. Yoss got the gun from the trunk of his car and gave it to Officer Tucker. Hun-sucker (not in Doss\u2019s presence and not admitted against Doss) told him he first saw the gun and television set in Doss\u2019s possession, and Doss told him (not in Hunsucker\u2019s presence) that he first saw the gun and television set in Hunsucker\u2019s car the night of 4 December.\nDefendant Doss offered no evidence.\nDefendant Hunsucker testified that he was at home all day 4 December working on his car, that he left once during the afternoon to go to the grocery store to get cigarettes and did not leave again until after 10 o\u2019clock when he left to carry Doss to Mr. King\u2019s house to get Mr. King to pull Doss\u2019s car. That when they got to Mr. King\u2019s house, his car would not start, so he rode back with Doss and Mr. King. The next day he went back to Mr. King\u2019s to fix his car, and Mr. King told him he had a shotgun and a rifle he\u2019d sell and when Mr. Yoss came by on Thursday he told him this and went with Mr. Yoss to Mr. King\u2019s. That Mr. King said to have the gun or fifty dollars back by Saturday morning. That Friday Mr. Tucker came and asked if he had a shotgun he got over at Mr. King\u2019s the night before, that he said he didn\u2019t have it but knew who did, that when he found out the gun was stolen he went with Mr. Tucker to Mr. Yoss\u2019s to get it. He and Doss had served prison terms together.\nHunsucker\u2019s mother testified he was home all day and didn\u2019t leave the house except to get cigarettes. That night he went off with Doss to help him get his car home. That it was about 9:30 when Doss came.\nElizabeth Storey testified that she was at the Hunsucker house that night. That Hunsucker left, was gone a few minutes and came back in time to ride to work with her which was twenty or twenty-five after ten.\nThe State concededly relies on the doctrine of possession of recently stolen goods. There is no question but that the property was stolen. However, in our view the evidence falls short of showing possession in Doss. Doss was neither the owner nor the driver of the car from which the articles were taken by Hunsucker into King\u2019s house. The evidence is not sufficient as to Doss to take the case to the jury. State v. Hopson, 266 N.C. 643, 146 S.E. 2d 642.\nAs to Doss, the judgment of the trial tribunal is\nReversed.\nAppeal of Hunsuckeb\nDefendant Hunsucker also brings forward only one assignment of error, and that relates to the charge of the court.\nThe court charged the jury: \u201cNow, members of the jury, on this first count the Court charges you that if you are satisfied from this evidence beyond a reasonable doubt that the home of Richard Bam-hardt was broken into and these items, the TV and the gun, were stolen, and that they were found in the possession of either or both of these defendants; you can determine from the evidence, then the law raises the presumption that the defendant is guilty of theft.\u201d (Emphasis added.)\nWhen two defendants are tried together it is error for the court to instruct the jury in the disjunctive. State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230. While this portion of the charge is not technically a submission of the question of guilt or innocence in the disjunctive, we think it is confusing and ambiguous. Particularly is this true when in other portions of the charge the court had previously instructed \u201cIf you find from the evidence and beyond a reasonable doubt that either one of these defendants, or both, broke into this house, and at the time that it was done that the intent was to take, steal and carry away such personal property as they might find, valuable property; and that the intent was to convert it to their own use, they not having permission at the time to do so, and that neither had any consent from the owner to go in, or to take any of the property, then it would be your duty to return a verdict, of guilty of breaking and entering as charged. If you are not so satisfied, the burden being upon the State to so satisfy you, then it would be your duty to return a verdict of not guilty.\u201d (emphasis added), and subsequently charged: \u201cNow, members of the jury, on the second count of larceny, if you are satisfied from the evidence beyond a reasonable doubt that either or both of these defendants took or had a part in taking this TV and the shotgun, and that it belonged to Barn-hardt and not to either one of them; and that it was taken against the will of the owner, and was carried away, and that both the taking and carrying away on the part of either, or one of these, or both of these defendants, was with the felonious intent, that is, the intent to steal existing at the time, then the Court charges you it would be your duty to return your verdict of guilty as charged on the second count of larceny. If you are not so satisfied, the burden being upon the State to satisfy you beyond a reasonable doubt, then it would be your duty to return a verdict of not guilty.\u201d (Emphasis added.)\nFor error in the charge there must be, as to Hunsucker, a new trial.\nAppeal'of Doss: Reversed.\nAppeal of Hunsucker: New trial.\nCampbell and Beitt, JJ., concur.", "type": "majority", "author": "Moeris, J." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General Bernard A. Harrell for the State.", "James C. Davis and Clarence E. Horton, Jr., for defendant appellant Doss.", "M. B. Sherrin for defendant appellant Hunsucker." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM DOSS and BAXTER HUNSUCKER\nNo. 6919SC230\n(Filed 18 June 1969)\n1. Burglary and Unlawful Breakings \u00a7 5; Larceny \u00a7 7\u2014 recent possession of stolen property \u2014 sufficiency of evidence\nIn this prosecution for breaking and entering and larceny, the State\u2019s evidence is held insufficient to be submitted to the jury under the doctrine of possession of recently stolen goods where it tends to show only that defendant was a passenger in an automobile driven by the owner in which articles stolen from a house by breaking and entering were transported shortly after the crime occurred.\n2. Criminal Law \u00a7 113\u2014 joint trial \u2014 instructions permitting guilty verdict as to both defendants if one defendant committed offense\nIn a joint trial of two defendants for the same offense, a charge susceptible to the construction that should the jury find beyond a reasonable doubt that either defendant committed the offense charged it should convict both defendants is held to constitute reversible error.\nAppeal by defendants from Crissman, J., October 1968 Session, Superior Court of Cabarrus.\nDefendants were charged in a valid bill of indictment with breaking and entering and larceny. Through court-appointed counsel, each defendant entered a plea of not guilty to each count. The cases were consolidated for trial. As to defendant Doss, the jury found him not guilty of breaking and entering but guilty of larceny. As to defendant Hunsuclcer, the jury found him guilty of both charges. Both defendants appealed from the judgments entered.\nThe facts are set out in the opinion.\nAttorney General Robert Morgan by Assistant Attorney General Bernard A. Harrell for the State.\nJames C. Davis and Clarence E. Horton, Jr., for defendant appellant Doss.\nM. B. Sherrin for defendant appellant Hunsucker." }, "file_name": "0146-01", "first_page_order": 168, "last_page_order": 172 }