{
  "id": 12169054,
  "name": "STATE OF NORTH CAROLINA v. ROGER LEE GARDNER",
  "name_abbreviation": "State v. Gardner",
  "decision_date": "1987-03-17",
  "docket_number": "No. 8618SC514",
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    "judges": [
      "Judge WELLS concurs.",
      "Judge BECTON dissents."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROGER LEE GARDNER"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nOn 10 December 1984, defendant was indicted for and later convicted of the offense of receiving stolen property in two separate bills by a grand jury sitting in Guilford County. The fact was uncontested that three individuals had feloniously stolen certain personal property from a household in Guilford County in early November of 1984. The thieves brought at least some of this property to defendant\u2019s place of business in Davidson County, \u201cThe Gold and Silver Shop.\u201d\nThe indictments both charged that:\non or about the date of offense shown [5 November 1984] and in the county named above [Guilford County] the defendant named above [Roger Lee Gardner] unlawfully, willfully and feloniously did receive and have . . . the personal property of Janet Cecil . . . having reasonable grounds to believe the property to have been feloniously stolen, taken, and carried away.\nDefendant first argues that the Guilford County Grand Jury had no power to return an indictment for a crime committed in another county. Defendant filed a timely pretrial motion to dismiss the indictments based upon his contention that \u201c[n]o act or omission to act constituting any part of the offense charged occurred in Guilford County. All of the acts alleged in the warrants, if said acts took place at all, took place at the defendant\u2019s place of business, The Gold and Silver Shop [,] which is located ... in Davidson County.\u201d Defendant\u2019s motion was denied.\nIn essence, defendant contends that the Guilford County Grand Jury did not have jurisdiction. \u201cAt common law a grand jury had jurisdictional power to indict only for crimes committed within the county in which it convened. State v. Randolph, 312 N.C. 198, 321 S.E. 2d 864 (1984); State v. Mitchell, 202 N.C. 439, 163 S.E. 581 (1932). The legislature has power to extend the grand jury\u2019s power beyond the territorial limitation imposed by the common law . . . State v. Flowers, 318 N.C. 208, 213, 347 S.E. 2d 773, 777 (1986).\nIn this case, sub judice, the indictment returned by the Guilford County Grand Jury alleged that the offense of receiving stolen goods had occurred in Guilford County. The uncontrovert-ed evidence was that, in fact, the receipt of the stolen goods took place in Davidson County. Only the theft took place in Guilford County.\nAbsent a particular statute conferring jurisdiction on Guilford County under the facts of this case, the defendant\u2019s motion to dismiss would have been well taken. However, N.C.G.S. \u00a7 14-71, dealing with \u201cReceiving Stolen Goods,\u201d states in part: \u201c. . . and any such receiver may be dealt with, indicted, tried and punished ... in any county in which the thief may be tried ...\u201d (Emphasis added.) Thus, the legislature has empowered grand juries to indict persons for receiving stolen goods in any county in which the thief may be tried. The evidence was uncon-tradicted that the theft took place in Guilford County. It follows that the defendant could be indicted in Guilford County for receiving the stolen goods because the thief could also be indicted there.\nWe now address whether the indictment was sufficient to meet the requirements of N.C.G.S. \u00a7 15A-924. The requirements of N.C.G.S. \u00a7 15A-924 mandate that a criminal pleading contain, inter alia, \u201cfacts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\u201d N.C.G.S. \u00a7 15A-924(a)(5) (1983). \u201cEvery defendant has the constitutional right to be informed of the accusation against him and the . . . indictment must set out the charge with such exactness that he can have a reasonable opportunity to prepare his defense . . . .\u201d State v. Rogers, 273 N.C. 208, 211, 159 S.E. 2d 525, 527 (1968).\nThe elements of receiving stolen goods are: (1) the receipt or concealment of property; (2) stolen by another; (3) knowing, or with reasonable grounds to believe, that it was stolen; and (4) with a dishonest purpose. See N.C.G.S. \u00a7 14-71 (1986); State v. Davis, 302 N.C. 370, 275 S.E. 2d 491 (1981); State v. Haywood, 297 N.C. 686, 256 S.E. 2d 715 (1979).\nThe indictments in the case sub judice clearly met the test set out in N.C.G.S. \u00a7 15A-924. The indictments allege that the defendant \u201cunlawfully, willfully and feloniously did receive [certain property specifically described] having reasonable grounds to believe the property to have been feloniously stolen, taken and carried away.\u201d Facts supporting each element of the offense are set out so as to reasonably apprise defendant of the conduct which is the subject of the accusation.\nDefendant contends that because the indictment alleges that the receipt took place in Guilford County rather than in Davidson County, the indictment is fatally flawed. We disagree. The location of the receipt of stolen goods is not an element of the offense and as such, a variance between the allegations in the indictment and proof at trial will not be fatal. State v. Currie, 47 N.C. App. 446, 267 S.E. 2d 390, cert. denied, 301 N.C. 237, 283 S.E. 2d 134 (1980).\nN.C.G.S. \u00a7 15A-924(a)(3) requires that the indictment must allege \u201cthat the offense charged therein was committed in a designated county,\u201d a requirement which existed at common law. State v. Batdorf, 293 N.C. 486, 238 S.E. 2d 497 (1977). Defendant contends the trial court should have dismissed the indictment because the allegation stated the crime took place in Guilford when in fact it took place in Davidson.\nThe purpose behind requiring that the county in which the offense took place be alleged is obviously to establish a basis for jurisdiction and venue. State v. Rogers, 273 N.C. 208, 159 S.E. 2d 525 (1968) (jurisdiction); State v. Haywood, 297 N.C. 686, 256 S.E. 2d 715 (1979) (venue). The indictment in the case sub judice technically complies with N.C.G.S. \u00a7 15A-924(a)(3) in that it alleges that the crime took place in Guilford County. The fact that the evidence proved that the crime took place in Davidson County rather than Guilford County, can only be fatal if the variance affected jurisdiction or venue. We have previously determined that the grand jury had jurisdiction, despite the variance. We now address the issue of venue.\nVenue is different from jurisdiction. As pointed out in State v. Flowers, 318 N.C. 208, 347 S.E. 2d 773 (1986), venue is \u201cthe location of the tribunal where a defendant may be compelled to stand trial. Venue becomes an issue, however, only after a grand jury has determined that probable cause to go forward with criminal proceedings against an accused exists.\u201d 318 N.C. at 215, 347 S.E. 2d at 778.\nDefendant\u2019s final contention is that the venue provisions of Article 3 of the Criminal Procedure Act do not permit venue in Guilford County for receipt of stolen goods occurring in Davidson County. Defendant further argues that N.C.G.S. \u00a7 14-71 which would allow venue in such circumstances has been supplanted by the venue provisions of Article 3. We disagree.\nFor purposes of determining venue for the offense of feloniously receiving stolen property, we hold that N.C.G.S. \u00a7 14-71 supersedes the general venue provisions.\nThree reasons based on the principles of statutory construction convince us that N.C.G.S. \u00a7 14-71 is still viable for determining venue. First, the older section deals with specific subject matter and is not a general venue statute. Unless the General Assembly clearly intended to make the general act controlling, the more specific statute will control. \u201cIt is a well established principle of statutory construction that a section of a statute dealing with a specific situation controls, with respect to that situation, other sections which are general in their application.\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E. 2d 663, 670 (1969).\nSecond, the rule of specific provisions controlling general ones \u201cis true a fortiori when the special act . . . [is] later in point of time.\u201d Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 629, 151 S.E. 2d 582, 586 (1966). The general venue provisions of the Criminal Procedure Act became law in 1973 and were most recently amended in 1983. The amendment itself did not affect language in that section positing that venue lies in the county where the charged offense occurred. Statutory provisions specifically addressing the indictment and trial of those accused of receiving stolen goods have been codified as N.C.G.S. \u00a7 14-71 since 1943. However, these provisions were most recently amended in 1975, the same year in which the Criminal Procedure Act, which includes N.C.G.S. \u00a7 15A-131(c), became effective.\nAlthough the Food Stores rule of recency does not technically apply to this chronology, the reasoning behind the rule does: in the same year conflicting provisions became effective, the legislature looked at N.C.G.S. \u00a7 14-71, made certain changes in it, but deleted none of it. \u201cIt is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law.\u201d State v. Benton, 276 N.C. 641, 658, 174 S.E. 2d 793, 804 (1970). And, because at the time it passed N.C.G.S. \u00a7 15A-131(c), the General Assembly did not overtly modify or expunge N.C.G.S. \u00a7 14-71, we can assume it did not intend to do so. \u201cCourts will not presume that the legislature intended a repeal by implication . . . .\u201d Id. at 658, 174 S.E. 2d at 804; Person v. Garrett, Comr. of Motor Vehicles, 280 N.C. 163, 184 S.E. 2d 873 (1971). In addition, the cross reference in N.C.G.S. \u00a7 15A-131 specifically refers the readers to N.C.G.S. \u00a7 14-71.\nThird, although the Criminal Procedure Act included language repealing all statutes in conflict with its provisions, 1973 N.C. Sess. Laws ch. 1286, \u00a7 26, we do not consider this repealer operative where an arguably conflicting statute has since been scrutinized and amended.\nWe thus conclude that the trial court correctly denied defendant\u2019s motions to dismiss and we accordingly find\nNo error.\nJudge WELLS concurs.\nJudge BECTON dissents.",
        "type": "majority",
        "author": "ORR, Judge."
      },
      {
        "text": "Judge Becton\ndissenting.\nWere I a legislator I could endorse wholeheartedly the \u201cwhat ought to be the law\u201d rule that permeates the majority\u2019s decision. After all, cogent policy reasons favor a rule that requires the receiver of stolen goods, not the victim whose goods are stolen, to travel to any county where the thief may be tried. But I am bound by the rules of law that courts should interpret the law, not legislate, and that criminal statutes are to be strictly construed against the State. Consequently, believing that the general venue provisions in G.S. Sec. 15A-131 supersede the specific venue provisions in our \u201cReceiving Stolen Goods\u201d statute, and further, that in any event, there exists in this case a fatal variance between the allegations in the indictments and the proof at trial, I dissent.\nFirst, in my view, the majority has improperly applied the \u201crule of recency\u201d stated in Food Stores v. Board of Alcoholic Control ante p. 620. The specific venue provisions in G.S. Sec. 14-71 are not more recent in time merely because that statute has been amended since the Criminal Procedure Act was passed. The majority\u2019s reasoning is unconvincing because the 1975 amendments to G.S. Sec. 14-71 did not involve the portion of the statute relating to venue, and we thus may not assume that the legislature\u2019s scrutiny extended to those provisions.\nA direct conflict exists between G.S. Sec. 14-71 which extends venue for receiving goods to counties where the goods are possessed, or where the thief may be tried, and G.S. Sec. 15A-131 which expressly limits venue \"[ejxcept as otherwise provided in this subsection\u201d to \u201cthe county where the charged offense occurred. . . .\u201d Significantly, G.S. Sec. 15A-131 contains no exception for \u201creceiving stolen goods\u201d cases. Moreover, the Criminal Procedure Act specifically provides: \u201cAll laws and clauses of laws in conflict with this Act are hereby repealed.\u201d 1973 N.C. Sess. Laws c. 1286, s.30. In Nytco Leasing Co. v. Southeastern Motels, 40 N.C. App. 120, 252 S.E. 2d 826 (1979), this Court relied upon an identical general repealer in holding that Rule 32 of the Rules of Civil Procedure regarding the use of depositions at trial took precedence over an older, conflicting statute, G.S. Sec. 8-83, despite the fact that G.S. Sec. 8-83 had not been explicitly repealed. In my view, once the legislature has unambiguously stated its intent to repeal conflicting statutes, we cannot require continuous legislature re-expression of that intent by demanding that every amendment thereafter to any affected statute explicitly delete or modify the previously supplanted portions.\nSecond, regardless of which venue statute controls this case, the indictment must correctly allege the facts that establish venue. Admittedly the indictments here are valid on their faces since a Guilford County grand jury alleged that the goods were received in Guilford County. See State v. Vines, 317 N.C. 242, 345 S.E. 2d 169 (1986). However, since all the evidence shows that the receiving occurred in Davidson County and that the theft occurred in Guilford County, the indictments cannot stand. Although the location of the crime is not an element of the offense, ante p. 619, I believe the requirement that an indictment allege that the offense was committed in a designated county is intended to provide adequate notice to the defendant of the facts relied upon by the State to establish the grand jury\u2019s power to indict in that location as well as to more \u201cclearly . . . apprise the defendant ... of the conduct which is the subject of the accusation,\u201d G.S. Sec. 15A-924(a)(5), ante p. 618, so that he may properly prepare his defense.\nBecause the cases in which venue exists in a county other than where the alleged crime occurred are rare, accuracy in alleging the facts that establish venue in such cases is especially important. Here the State failed to allege that the \u201cthief\u2019 stole the property or could otherwise be tried in Guilford County so as to come within the special venue provision of G.S. Sec. 14-71 upon which the State relies. In my view, the State may not allege one set of facts in the indictment to establish venue and rely upon another at trial, even if venue would exist under either set of facts.\nBased on the foregoing, I vote to reverse.",
        "type": "dissent",
        "author": "Judge Becton"
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Sylvia Thibaut, for the State.",
      "Ferguson, Stein, Watt, Wallas & Adkins, P.A., by Adam Stein and C. Richard Tate, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROGER LEE GARDNER\nNo. 8618SC514\n(Filed 17 March 1987)\n1. Indictment and Warrant \u00a7 3; Receiving Stolen Goods \u00a7 2\u2014 theft in Guilford County\u2014goods received in Davidson County\u2014indictment in Guilford County proper\nWhere the uncontroverted evidence was that a theft took place in Guilford County and receipt of the stolen goods took place in Davidson County, pursuant to N.C.G.S. \u00a7 14-71, defendant could be indicted in Guilford County for receiving stolen goods because the thief could also be indicted there.\n2. Receiving Stolen Goods \u00a7 2\u2014 sufficiency of indictment\nAn indictment charging defendant with receiving stolen goods met the requirements of N.C.G.S. \u00a7 15A-924 where it alleged that defendant \u201cunlawfully, willfully and feloniously did receive [certain property specifically described] having reasonable grounds to believe the property to have been feloniously stolen, taken and carried away,\u201d and facts supporting each element of the offense were set out so as reasonably to apprise defendant of the conduct which was the subject of the accusation.\n3. Receiving Stolen Goods \u00a7 2\u2014 place of receipt improperly alleged\u2014indictment not fatally flawed\nThere was no merit to defendant\u2019s contention that because the indictment alleged that the receipt of stolen goods took place in Guilford County rather than in Davidson County, the indictment was fatally flawed. N.C.G.S. 15A-924(a)(3).\n4. Criminal Law \u00a7 15\u2014 receiving stolen goods\u2014venue\u2014which statute controls\nFor purposes of determining venue for the offense of feloniously receiving stolen property, N.C.G.S. \u00a7 14-71 supersedes the general venue provisions of Article 3 of the Criminal Procedure Act, since \u00a7 14-71 deals with specific subject matter, and the more specific statute controls over a general one; in the same year that conflicting provisions of the statutes became effective, the legislature looked at, changed, but deleted none of \u00a7 14-71; and though the Criminal Procedure Act included language repealing all statutes in conflict with its provisions, such repealer was not operative where an arguably conflicting statute was subsequently scrutinized and amended.\nJudge Becton dissenting.\nAppeal by defendant from Long f,James MJ, Judge. Judgment entered 21 November 1985 in Superior Court, GUILFORD County. Heard in the Court of Appeals 20 October 1986.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Sylvia Thibaut, for the State.\nFerguson, Stein, Watt, Wallas & Adkins, P.A., by Adam Stein and C. Richard Tate, Jr., for defendant appellant."
  },
  "file_name": "0616-01",
  "first_page_order": 644,
  "last_page_order": 651
}
