{ "id": 2544115, "name": "STATE OF NORTH CAROLINA v. GARY D. BUCKOM", "name_abbreviation": "State v. Buckom", "decision_date": "1991-03-07", "docket_number": "No. 335PA90", "first_page": "313", "last_page": "318", "citations": [ { "type": "official", "cite": "328 N.C. 313" } ], "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": "393 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": -1 }, { "cite": "99 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "year": 1990, "opinion_index": -1 }, { "cite": "74 ALR3d 271", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "258 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569897 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0254-01" ] }, { "cite": "50 N.C. (5 Jones) 163", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1857, "pin_cites": [ { "page": "166-70", "parenthetical": "Pearson, J., seriatim opinion" } ], "opinion_index": 0 }, { "cite": "294 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572675, 8572708, 8572657, 8572754, 8572732 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0561-02", "/nc/306/0561-03", "/nc/306/0561-01", "/nc/306/0561-05", "/nc/306/0561-04" ] }, { "cite": "290 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522874 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "169-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0168-01" ] }, { "cite": "161 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "parenthetical": "applying common law elements of larceny" } ], "opinion_index": 0 }, { "cite": "273 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576142 ], "weight": 2, "year": 1968, "pin_cites": [ { "parenthetical": "applying common law elements of larceny" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0721-01" ] }, { "cite": "179 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559968 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0199-01" ] }, { "cite": "178 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559611 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0042-01" ] }, { "cite": "210 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565212 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0265-01" ] }, { "cite": "184 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571308 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0589-01" ] }, { "cite": "372 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564037 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0259-01" ] }, { "cite": "186 S.E. 251", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625899 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0283-01" ] }, { "cite": "243 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625792 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0479-01" ] }, { "cite": "359 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729222 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0533-01" ] } ], "analysis": { "cardinality": 566, "char_count": 11269, "ocr_confidence": 0.76, "pagerank": { "raw": 3.264538208806469e-07, "percentile": 0.8697225205021606 }, "sha256": "37a1e6f3a7de0f2655ef70113fd8e38fc47e46650820c2ad356f5e6a578012e9", "simhash": "1:2821c81e276fa0bd", "word_count": 1959 }, "last_updated": "2023-07-14T22:58:40.693084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GARY D. BUCKOM" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe central issues before this Court on appeal are whether the trial court erred (1) by denying the defendant\u2019s motion to dismiss the charge against him for larceny from the person, or (2) by refusing to submit a possible verdict for the lesser offense of misdemeanor larceny for the jury\u2019s consideration. We affirm the holding of the Court of Appeals that the trial court did not err.\nEvidence for the State tended to show that the defendant entered the Convenience Mart owned by James P. George \u2014 through his corporation, George of John Street, Inc. \u2014on 25 October 1988. Catherine Stone testified that on 25 October 1988, she was working as a cashier in the store when the defendant entered shortly after 8:00 p.m. Stone twice refused to make change for the defendant to play video machines in the store. The third time the defendant approached the cash register, he purchased some candy. The defendant handed Stone his money and, as she opened the cash register to make change, he reached \u201cover and pulled the money out of the, one of the slots that was in there and took out the largest sum of money and took off out the door.\u201d Stone testified that at that time her left hand was in the cash drawer. Evidence for the State tended to show that the defendant took $91.00 from the cash register.\nThe owner of the store, James P. George, testified that on his way to supper, he had seen the defendant in the parking lot. George then returned to the store to alert Stone to be careful of the defendant. When George returned to the premises after the larceny, Stone told him that the person he had pointed out to her had taken the money from the cash register.\nAfter the State rested, the trial court denied the defendant\u2019s motion to dismiss the charges against him. The defendant presented no evidence.\nAfter a charge conference, the trial court, over objection by the defendant, instructed the jury, inter alia, that: \u201cAny property taken from the cash register when the cash register was being operated by Catherine Stone would be property taken from the person.\u201d The jury returned a verdict finding the defendant guilty of larceny from the person.\nJudge Paul M. Wright, who had presided over the trial, recused himself from sentencing. Thereafter, a sentencing hearing was held before Judge Samuel T. Currin who sentenced the defendant to a ten-year term of imprisonment.\nIn an unpublished decision, the Court of Appeals held that the defendant\u2019s trial was free of error. On 29 August 1990, this Court allowed the defendant\u2019s petition for discretionary review.\nBy his first and second assignments of error, the defendant contends that the trial court erred by denying his motion to dismiss the charge of felonious larceny from the person and by instructing the jury to the effect that a taking of property from the cash register while it was being operated by Stone would be a taking from the person. We do not agree.\nBefore addressing the defendant\u2019s assignments of error, a review of certain principles of law is helpful. The General Assembly of North Carolina has declared that so much of the common law as has not been abrogated or repealed by statute or become obsolete is in full force and effect in this state. N.C.G.S. \u00a7 4-1 (1986); see, e.g., Martin v. Thornburg, 320 N.C. 533, 359 S.E.2d 472 (1987); McMichael v. Proctor, 243 N.C. 479, 91 S.E.2 231 (1956); State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936). The \u201ccommon law\u201d referred to in N.C.G.S. \u00a7 4-1 is the common law of England as of the date of the signing of the Declaration of Independence. Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988); Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971). It is well settled that when a statute punishes a crime known at common law without defining its elements, the common law definition controls. State v. Roberts, 286 N.C. 265, 210 S.E.2d 396 (1974); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971). Bearing these principles in mind, we turn to the defendant\u2019s assignments of error.\nThe defendant argues that the evidence in the present case was uncontroverted to the extent that it tended to show that any money taken was taken from the cash register and, therefore, not taken from the person of Stone. We do not agree.\nOur legislature has decreed that larceny is a felony. N.C.G.S. \u00a7 14-70 (1986). In N.C.G.S. \u00a7 14-72, however, the legislature declared inter alia that the larceny of goods of a value of not more than $400.00 is a misdemeanor. N.C.G.S. \u00a7 14-72(a) (1986). Nevertheless, the legislature specifically exempted the crime of larceny from the person from that provision, when it provided further that larceny from the person is a felony without regard to the value of the property taken. N.C.G.S. \u00a7 14-72(b)(l) (1986); see State v. Benfield, 278 N.C. 199, 179 S.E.2d 388 (1971); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968). As none of our statutes define the phrase \u201cfrom the person\u201d as it relates to larceny, the common law definition controls. See State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968) (applying common law elements of larceny).\nAt common law, \u201cLarciny [sic] from the person is either by privately stealing; or by open and violent assault, which is usually called robbery.\u201d 4 W. Blackstone, Commentaries *241. \u201cOpen and violent larciny [sic] from the person, or robbery ... is the felonious and forcible taking from the person of another, of goods or money to any value by violence or putting him in fear.\u201d Id. The difference between the two forms of larceny referred to by Blackstone is that \u201c \u2018robbery,\u2019 even in its least aggravated form, is \u2018an open and violent larciny [sic] from the person,\u2019 or the felonious taking, from the person [of,] or in the presence o/[,] another, of goods or money against his will by violence or by putting him in fear, whereas\u201d stealing from the person is concealed, clandestine activity. H. Broom, Commentaries on the Common Law *976 (1856) (footnotes omitted) (emphasis added). At common law, larceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear. State v. Henry, 57 N.C. App. 168, 169-70, 290 S.E.2d 775, 776, disc. rev. denied, 306 N.C. 561, 294 S.E.2d 226 (1982); see N.C.G.S. \u00a7 14-72. Larceny from the person forms a middle ground in the common law between the \u201cprivate\u201d stealing most commonly associated with larceny, and the taking by force and violence commonly associated with robbery. See State v. John, 50 N.C. (5 Jones) 163, 166-70 (1857) (Pearson, J., seriatim opinion).\nTaken in the context of the foregoing common law principles, \u201c[property is stolen \u2018from the person,\u2019 if it was under the protection of the person at the time. . . . [Property may be under the protection of the person although not actually \u2018attached\u2019 to him.\u201d R. Perkins & R. Boyce, Criminal Law 342 (3d ed. 1982) (footnotes omitted). For example, if a jeweler places diamonds on a counter for inspection by a customer, under the jeweler\u2019s eye, the diamonds remain under the protection of the jeweler. Id. It has not been the general interpretation that larceny from the person \u201crequires an actual taking from the person, and is not committed by a taking from the immediate presence and actual control of the person. ... As said by Coke in the 1600\u2019s: \u2018for that which is taken in his presence, is in law taken from his person.\u2019 \u201d Id. at 342-43 (quoting 3 Coke, Institutes *69).\nIn the instant case, all of the evidence tended to show that if the defendant committed any offense, he reached into the cash register and forcibly removed a sum of money. The clerk had just opened the register, had her left hand in the cash drawer, and was in the process of making change for the defendant when he reached in and grabbed the money. Such evidence was sufficient to support the defendant\u2019s conviction for larceny from the person. The trial court did not err by denying the defendant\u2019s motion to dismiss the charge against him for larceny from the person or in its instructions to the jury concerning the meaning of taking \u201cfrom the person.\u201d \u2022\nIn the defendant\u2019s next assignment of error, he contends that the trial court erred by failing to instruct the jury to consider a verdict against him for misdemeanor larceny. We do not agree. Submission of the lesser offense of misdemeanor larceny was not required when, as here, no evidence tended to show that the lesser offense had been committed. See, e.g., State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979); State v. Henry, 57 N.C. App. 168, 290 S.E.2d 775, disc. rev. denied, 306 N.C. 561, 294 S.E.2d 226 (1982).\nFor the foregoing reasons, we affirm the holding of the Court of Appeals in its unpublished decision finding no error in the defendant\u2019s trial.\nAffirmed.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Jacob L. Safron, Special Deputy Attorney General, for the State.", "Glenn A. Barfield for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY D. BUCKOM\nNo. 335PA90\n(Filed 7 March 1991)\n1. Common Law \u00a7 1 (NCI4th)\u2014 effective parts of common law\nSo much of the common law as has not been abrogated or repealed by statute or become obsolete is in full force and effect in this state pursuant to N.C.G.S. \u00a7 4-1. The \u201ccommon law\u201d referred to in \u00a7 4-1 is the common law of England as of the date of the signing of the Declaration of Independence.\nAm Jur 2d, Common Law \u00a7\u00a7 13-18.\n2. Criminal Law \u00a7 11 (NCI4th) \u2014 statutory punishment \u2014failure to define crime elements \u2014common law applicable\nWhen a statute punishes a crime known at common law without defining its elements, the common law controls.\nAm Jur 2d, Criminal Law \u00a7\u00a7 7, 9.\n3. Larceny \u00a7 7.5 (NCI3d)\u2014 larceny from person \u2014taking money from cash register\nThe State\u2019s evidence was sufficient to support defendant\u2019s conviction for larceny from the person where it tended to show that a store clerk had just opened the cash register, had her left hand in the cash drawer, and was in the process of making change for the defendant when he reached into the cash register and forcibly removed a sum of money.\nAm Jur 2d, Larceny \u00a7 48.\nWhat constitutes larceny \u201cfrom a person.\u201d 74 ALR3d 271.\n4. Larceny \u00a7 8 (NCI3d)\u2014 instruction \u2014 removal of money from cash register \u2014taking from the person\nThe trial court did not err in instructing the jury that a taking of property from a cash register while it was being operated by a store clerk would be a taking \u201cfrom the person.\u201d\nAm Jur 2d, Larceny \u00a7 48.\nWhat constitutes larceny \u201cfrom a person.\u201d 74 ALR3d 271.\n5. Larceny \u00a7 8 (NCI3d)\u2014 felonious larceny \u2014failure to submit misdemeanor\nThe trial court in a prosecution for felonious larceny from the person did not err in failing to submit to the jury a possible verdict for the lesser offense of misdemeanor larceny where no evidence tended to show that the lesser offense had been committed.\nAm Jur 2d, Larceny \u00a7 174.\nOn discretionary review, pursuant to N.C.G.S. \u00a7 7A-31, of the unpublished decision of the Court of Appeals, 99 N.C. App. 222, 393 S.E.2d 363 (1990), which found no error in the trial of the defendant before Wright, J., or in the judgment entered against the defendant on 7 June 1989 by Currin, J., in the Superior Court, WAYNE County. Heard in the Supreme Court on 13 December 1990.\nLacy H. Thornburg, Attorney General, by Jacob L. Safron, Special Deputy Attorney General, for the State.\nGlenn A. Barfield for the defendant-appellant." }, "file_name": "0313-01", "first_page_order": 347, "last_page_order": 352 }