{ "id": 8520299, "name": "STATE OF NORTH CAROLINA v. JUNIOR CLAUDE BROWN", "name_abbreviation": "State v. Brown", "decision_date": "1982-03-02", "docket_number": "No. 8129SC854", "first_page": "228", "last_page": "232", "citations": [ { "type": "official", "cite": "56 N.C. App. 228" } ], "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": "283 S.E. 2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "257 S.E. 2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "42 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555246 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/42/0577-01" ] }, { "cite": "259 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553491 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0556-01" ] }, { "cite": "262 S.E. 2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554740 ], "year": 1980, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0659-01" ] }, { "cite": "432 U.S. 197", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178111 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "210" }, { "page": "2327" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/us/432/0197-01" ] }, { "cite": "55 S.E. 787", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1906, "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "142 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652804 ], "weight": 2, "year": 1906, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/142/0700-01" ] }, { "cite": "89 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683426 ], "year": 1883, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc/89/0517-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "143 S.E. 3", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "195 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630610 ], "year": 1928, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc/195/0537-01" ] }, { "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" ] } ], "analysis": { "cardinality": 492, "char_count": 9400, "ocr_confidence": 0.788, "pagerank": { "raw": 1.5864843923118092e-07, "percentile": 0.6813121151078693 }, "sha256": "2fa1b74d8bf4a0d49eecd7cf2fc97b82767215ef3fa5d3405e49d6c4ef094084", "simhash": "1:bfd06bf68500f34a", "word_count": 1570 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge MARTIN (Harry C.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JUNIOR CLAUDE BROWN" ], "opinions": [ { "text": "VAUGHN, Judge.\nThree of defendant\u2019s assignments of error relate to the indictment for larceny by an employee. Defendant first argues that the indictment is defective because it fails to allege a trust delivery. We overrule this assignment of error.\nG.S. 14-74 states the following:\n\u201cIf any servant or other employee, to whom any money, goods or other chattels ... by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods, or other chattels . . . with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; . . . the servant so offending shall be punished as a Class H felon: Provided, that nothing contained in this section shall extend to . . . servants within the age of 16 years.\u201d\nAccording to State v. Babb, 34 N.C. App. 336, 238 S.E. 2d 308 (1977), an indictment charging a violation of G.S. 14-74 must allege that the property was received and held by the defendant in trust, or for the use of the owner, and that being so held, it was feloniously converted or made away with by the servant or agent.\nThe present indictment alleges that the defendant feloniously carried away two black angus cows which were owned by Royce B. Thomas. It further alleges that\n\u201c[a]t the time of this larceny the defendant was the employee of Royce B. Thomas and the said cows had been delivered safely to the defendant to be kept to the use of Royce B. Thomas, and the defendant converted them to his own use with the intent to steal them and to defraud his employer, without the consent of his employer. The defendant occupied a position of trust and confidence.\u201d\nBecause the indictment alleges that the cows were delivered to defendant \u201cto be kept to the use of \u2019 his employer, we hold the indictment sufficiently alleges a trust delivery. It is not necessary for the indictment to allege who delivered the cows to defendant. See also State v. Maslin, 195 N.C. 537, 539, 143 S.E. 3, 5 (1928), rev\u2019d on other grounds, 279 N.C. 663, 185 S.E. 2d 174 (1971); State v. Lanier, 89 N.C. 517, 519 (1883).\nDefendant next argues that the indictment is inadequate because it fails to allege that he is at least 16 years old. He cites the statutory phrase, \u201cProvided, that nothing contained in this section shall extend to . . . servants within the age of 16 years.\u201d Defendant contends that age is an essential element of G.S. 14-74, which must be alleged, proven and charged. We disagree.\nWe are aided in our analysis by State v. Connor, 142 N.C. 700, 55 S.E. 787 (1906). Addressing a question similar to the present one, the Supreme Court stated:\n\u201cIt is well established that when a statute creates a substantial criminal offense, the description of the same being complete and definite, and by subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negative in the indictment, nor is proof required to be made in the first instance on the part of the prosecution.\u201d\n142 N.C. at 701, 55 S.E. at 788.\nAs noted in State v. Connor, supra, there are no magic words for creating an exception to an offense. Neither is placement of a phrase controlling. The determinative factor is the nature of the language in question. Is it part of the definition of the crime or does it withdraw a class from the crime?\nUpon examining G.S. 14-74, we conclude that the phrase in question withdraws a class of defendants from the crime of larceny by an employee. The language before the phrase completely and definitely defines the offense. Servants within 16 years of age are excepted from that definition. Because the phrase creates an exception to G.S. 14-74, we hold that age is not an essential element which the indictment must allege and the State initially prove. See State v. Connor, supra. Compare with G.S. 14-27.2.\nWe recognize that a legislature cannot so define the elements of an offense that defendant has an \u201cunfair\u201d allocation of the burden of proof. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed. 2d 281, 292 (1977); State v. Trimble, 44 N.C. App. 659, 666, 262 S.E. 2d 299, 303 (1980). Age, however, is a fact particularly within defendant\u2019s knowledge. To place the burden on defendant to raise the exception to G.S. 14-74 and to prove that he comes within it does not exceed the constitutional limits established. Defendant\u2019s assignment of error is overruled.\nDefendant\u2019s third assignment of error is an alleged fatal variance between the indictment against him and the evidence offered at trial. Defendant was charged with larceny by an employee. He contends, however, that the evidence supported a conviction, if at all, of common law larceny.\nDefendant correctly notes a distinction between larceny by an employee and common law larceny. The latter is not a lesser included offense of the former. In fact, a conviction of common law larceny requires evidence inconsistent with that supporting a conviction of larceny by an employee. State v. Daniels, 43 N.C. App. 556, 259 S.E. 2d 396 (1979). Common law larceny requires a trespass, either actual or constructive. Larceny by an employee requires lawful possession.\nDefendant mistakenly equates, however, his actions with the trespass element of common law larceny. Defendant argues that the evidence showed he removed the cows without authority. He contends that he is, therefore, guilty of a wrongful taking and cannot be convicted of G.S. 14-74. The evidence highlighted by defendant, however, shows a wrongful carrying away \u2014 an element of both common law larceny and larceny by an employee. The wrongful taking of trespass refers to an originally wrongful acquisition of the objects.\nA case on point is State v. Lovick, 42 N.C. App. 577, 257 S.E. 2d 146 (1979). The employees there were employed to bag groceries and sweep. Without permission of their employer, they removed hams from the storeroom. The Court held the employees were properly charged with larceny rather than embezzlement. The evidence showed they had acquired possession of their employer\u2019s property illegally.\nIn contrast is the evidence of the present cause. Defendant\u2019s employer testified that defendant was in charge of one hundred or so cattle on Round Pond Farm. According to the manager of Round Pond Farm, defendant was more or less foreman: \u201cHe was entrusted with all the cattle there on the farm.\u201d This evidence shows that defendant originally had lawful possession of the cows, as required by G.S. 14-74. There is thus no variance between the charge and proof.\nDefendant finally argues that the court committed prejudicial error in its admission of hearsay evidence. The argument is without merit for several reasons. Among them, there is nothing to indicate that the witness was not testifying from personal knowledge. If defendant had reason to believe the witness was not speaking from personal knowledge, he was at liberty to explore the issue on cross-examination or voir dire. State v. McKinnon, --- N.C. App. ---, 283 S.E. 2d 555 (1981).\nNo error.\nChief Judge MORRIS and Judge MARTIN (Harry C.) concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Daniel F. McLawhom, for the State.", "Appellate Defender Project for North Carolina, by Assistant Appellate Defender Malcolm R. Hunter, Jr., and Assistant Appellate Defender Lorinzo L. Joyner, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JUNIOR CLAUDE BROWN\nNo. 8129SC854\n(Filed 2 March 1982)\n1. Larceny \u00a7 4\u2014 larceny by employee \u2014sufficiency of indictment\nIn a prosecution for larceny by an employee, an indictment which alleged that cows were delivered to defendant \u201cto be kept to the use of\u201d his employer sufficiently alleged a trust delivery, and it was not necessary for the indictment to allege who delivered the cows to defendant.\n2. Larceny \u00a7 4\u2014 larceny by employee \u2014 age not essential element in indictment\nIn a prosecution for larceny by employee, an indictment was not inadequate because it failed to allege that defendant was at least 16 years of age. A proviso in the larceny by employee statute, G.S. 14-74, providing \u201cthat nothing contained in this section shall extend to . . . servants within the age of 16 years,\u201d withdraws a class of defendants from the crime of larceny by an employee. Because the phrase creates an exception to G.S. 14-74, age is not an essential element which the indictment must allege.\n3. Larceny \u00a7 1 \u2014 distinction between larceny by employee and common law larceny \u2014 no fatal variance between indictment and evidence\nThere was no fatal variance between an indictment charging defendant with larceny by an employee and the evidence offered at trial where the evidence tended to show defendant was employed as foreman of a farm, was in charge of 100 or so cattle, and wrongfully carried away some of the cattle. The evidence did not prove a common law larceny offense as the evidence did not support the inference that defendant originally wrongfully acquired the property.\nAPPEAL by defendant from Freeman, Judge. Judgment entered 11 March 1981 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 1 February 1982.\nDefendant was convicted of felonious larceny by an employee. Judgment imposing a prison sentence was entered.\nAttorney General Edmisten, by Assistant Attorney General Daniel F. McLawhom, for the State.\nAppellate Defender Project for North Carolina, by Assistant Appellate Defender Malcolm R. Hunter, Jr., and Assistant Appellate Defender Lorinzo L. Joyner, for defendant appellant." }, "file_name": "0228-01", "first_page_order": 260, "last_page_order": 264 }