{
  "id": 8562586,
  "name": "STATE v. ALBERT FOWLER",
  "name_abbreviation": "State v. Fowler",
  "decision_date": "1966-03-09",
  "docket_number": "",
  "first_page": "667",
  "last_page": "669",
  "citations": [
    {
      "type": "official",
      "cite": "266 N.C. 667"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "124 S.E. 2d 91",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "256 N.C. 372",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8572822
      ],
      "pin_cites": [
        {
          "page": "380"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/256/0372-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T18:16:51.556627+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Mooee, J., not sitting."
    ],
    "parties": [
      "STATE v. ALBERT FOWLER."
    ],
    "opinions": [
      {
        "text": "PER C\u00fcRiam.\nDefendant was represented at trial and is represented on appeal by court-appointed counsel.\nThe only evidence was that offered by the State. The evidence consists of McLamb\u2019s testimony that his building was broken into and entered and his money stolen and the testimony of a deputy sheriff as to defendant\u2019s admission he was one of the three participants in the commission of the crimes of which he was convicted.\nWhile defendant\u2019s counsel objected to the officer\u2019s testimony on the ground the confession was involuntary, a hearing was conducted in the absence of the jury in which the officer did and defendant did not testify; and, in the absence of the jury, the court made findings, which were supported by evidence, that defendant\u2019s confession was in fact voluntary.\nWhile each of defendant\u2019s assignments of error relating to events occurring during the trial has been considered, none discloses error of such prejudicial nature as to warrant a new trial.\nHowever, we are constrained to hold the court erred in respect of the judgment pronounced on the verdict on the second count.\nUnder G.S. 14-72, as amended, the larceny of property of the value of $200.00, or less, is a misdemeanor. However, G.S. 14-72, as amended, does not apply when \u201cthe larceny is from the person, or from the dwelling or any storehouse, shop, warehouse, banking house, counting house, or other building where any merchandise, chattel, money, valuable security or other personal property shall be, by breaking and entering.\u201d In instances where G.S. 14-72 as amended does not apply, the larceny, as at common law, is a felony without regard to the value of the stolen property. S. v. Cooper, 256 N.C. 372, 380, 124 S.E. 2d 91, and cases cited.\nHere the second count charges the larceny of $128.34 in cash. It contains no allegation the larceny was from a building by breaking and entering or by other means of such nature as to make the larceny a felony. Hence, the crime charged is a misdemeanor for which the maximum prison sentence is two years.\nIn cases where all the evidence tends to show the alleged larceny was from a building by breaking and entering, technical difficulties will be avoided by including an allegation to this effect in the (separate) larceny count.\nThe foregoing leads to this conclusion: As to the first count, the judgment of the court below is affirmed. As to the second count, the judgment of the court below is vacated and the cause is remanded for the entry of a new judgment based upon defendant\u2019s conviction of the (simple) larceny of property of the value of $200.00 or less, to wit, a misdemeanor.\nFirst count, judgment affirmed.\nSecond count, judgment vacated, remanded for new judgment.\nMooee, J., not sitting.",
        "type": "majority",
        "author": "PER C\u00fcRiam."
      }
    ],
    "attorneys": [
      "Attorney General Bruton and Deputy Attorney General Moody for the State.",
      "John F. Crossley for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ALBERT FOWLER.\n(Filed 9 March 1966.)\nLarceny \u00a7 8\u2014\nWhere the indictment charges the larceny of $200 or less and does not charge that the larceny was from a building by breaking and entering, or by any other means of such nature as to make the larceny a felony, the indictment charges only a misdemeanor, and a sentence on the count in excess of two years must be vacated and the cause remanded for proper judgment.\nMooee, J., not sitting.\nAppeal by defendant from Morris, J., August 1965 Criminal Session of New HaNOVer.\nDefendant was tried on the first and second counts of a three-count bill of indictment. The jury returned a verdict of guilty (1) of feloniously breaking and entering a certain building occupied by one J. M. McLamb, as charged in the first count, and (2) of larceny of personal property of J. M. McLamb as charged in the second count.\nJudgment, imposing a prison sentence of six years and three months, was pronounced on the verdict on the first count; and judgment, imposing a prison sentence of ten years, was pronounced on the verdict on the second count, this sentence to commence upon expiration of the sentence on the first count.\nDefendant excepted and appealed.\nAttorney General Bruton and Deputy Attorney General Moody for the State.\nJohn F. Crossley for defendant appellant."
  },
  "file_name": "0667-01",
  "first_page_order": 703,
  "last_page_order": 705
}