State v. Graham

267 S.E.2d 56, 47 N.C. App. 303, 1980 N.C. App. LEXIS 3081
CourtCourt of Appeals of North Carolina
DecidedJune 17, 1980
DocketNo. 798SC1180
StatusPublished
Cited by3 cases

This text of 267 S.E.2d 56 (State v. Graham) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Graham, 267 S.E.2d 56, 47 N.C. App. 303, 1980 N.C. App. LEXIS 3081 (N.C. Ct. App. 1980).

Opinion

VAUGHN, Judge.

Defendant brings forward eight assignments of error in the trial below. We find the assigned errors without merit.

Defendant contends the courts of this State were without jurisdiction over the crimes of breaking and entering of and larceny from the Maury Post Office. The Congress has passed laws to protect United States post offices from breaking and entering and larceny. 18 U.S.C. §§ 2115, 1707. Our State, in compliance with clause seventeen, section eight of the first article of the United States Constitution, consents to the acquisition of lands within the State by the United States and cedes exclusive jurisdiction, except for service of civil and criminal process, over lands so acquired to the federal government. G.S. 104-7. The United States may accept exclusive or partial jurisdiction over lands acquired within a state and 40 U.S.C. § 255 provides that exclusive or partial jurisdiction may be accepted by giving written notice to the governor of the state [306]*306or in such other manner as prescribed by the law of the state in which the land lies of the type of jurisdiction that is being accepted. “Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.” Id. Until the federal government accepts exclusive jurisdiction in accordance with 40 U.S.C. § 255, our Courts will retain jurisdiction over crimes against the laws of this State committed on Federal lands in this State. State v. Burell, 256 N.C. 288, 123 S.E. 2d 795, cert. den., 370 U.S. 961, 8 L. Ed. 2d 827, 82 S. Ct. 1621 (1962). The record does not reveal that the federal government has accepted exclusive jurisdiction over the Maury Post Office property. Defendant maintains we should at least remand the case for a determination by the trial court of whether it had subj ect matter j urisdiction over the post office offenses. Defendant notes that this was done in a Pennsylvania case involving burglary of a post office. Commonwealth v. Mangum, 231 Pa. Super. 162, 332 A. 2d 467 (1974). We do not feel this is necessary because of the differences between the Pennsylvania statute concerning the ceding of jurisdiction over lands to the federal government and interpretations given that statute by Pennsylvania courts and our own G.S. 104-7 concerning the ceding of jurisdiction over lands to the federal government and the interpretation of that statute in Burell. Furthermore, the trial court in this case heard defendant’s motion to this effect and denied it. Remand to the trial court is not necessary as it has made a ruling on jurisdiction. Upon the record of this case, defendant has no immunity from subject matter jurisdiction of his crimes in our State’s courts. There is no showing of acceptance of exclusive jurisdiction by the federal government over the post office.

The arrest of defendant was without a warrant in the home of a friend. Defendant argues illegality in the arrest because the officer lacked probable cause to arrest defendant. According to the arresting officer, he questioned defendant’s friend, Tyson, after giving him Miranda warnings about his rights. Tyson then told the officer about the crimes and defendant’s involvement therein. The officer testified he was afraid defendant would avoid apprehension if not then arrested because defendant had seen his friend Tyson arrested and because de[307]*307fendant had told the officer that he lived with his mother when the officer knew he did not. Upon these facts, the arresting officer had probable cause to believe that defendant had committed the felonies and might not be apprehended unless immediately arrested. The arrest at the home of a friend was a valid warrantless arrest. G.S. 15A-401(b)(2)a; State v. Phifer, 290 N.C. 203, 225 S.E. 2d 786 (1976), cert. den., 429 U.S. 1123, 51 L. Ed. 2d 573, 97 S. Ct. 1160 (1977).

Defendant contends there is a fatal variance between the allegations of the indictments and the proof at trial. The bill of indictment concerning the theft from the post office building alleged the stolen money and radio were “the personal property of Maury Post Office a division of the United States Postal Service.” The evidence was to the effect that the money and radio were the personal property of the postmaster. The fact that the indictment charges defendant with larceny from the post office where evidence is that the post office is not the owner of such property is not a fatal defect in such a case as this where the property stolen was owned by the postmaster and he had left the property in the post office. The post office was in lawful custody and possession of the property at the time it was taken and the indictment is not invalid. State v. Hauser, 183 N.C. 769, 111 S.E. 349 (1922); State v. Robinette, 33 N.C. App. 42, 234 S.E. 2d 28 (1977); State v. Dees, 14 N.C. App. 110, 187 S.E. 2d 433 (1972). The other felonious larceny indictment alleged the tire tool to be “the personal property of L. A. Moye, L. A. Moye, Jr., and C. L. Stokes t/a Moye and Stokes Store.” The evidence showed that Charles Stokes owned the warehouse from which the tire tool was taken. There is no fatal variance where as here the indictment alleges ownership in the owners of a business and the proof is that it is taken from the property of one owner personally. State v. Smith, 4 N.C. App. 261, 166 S.E. 2d 473 (1969). Finally, the third indictment alleged the breaking and entering of a “building occupied by Julian Jones used as a garage.” The evidence was that the building was a storage shed and was not used by Mr. Jones since his health had declined. We find no fatal variance in this indictment. For felonious breaking and entering with intent to steal, it is not incumbent on the State to establish the owner of the property defendant intended to steal but only the intent to steal upon breaking or entering. State v. [308]*308Crawford, 3 N.C. App. 337, 164 S.E. 2d 625 (1968), cert. den., 275 N.C. 138 (1969).

The grand jury indictments of defendant concerning the crimes committed at the post office and the Moye and Stokes Store contained multiple counts for felonious breaking and entering, felonious larceny, felonious receiving and felonious possession. Prior to trial, defendant moved to dismiss these indictments on the grounds defendant could not be guilty of both the larceny and the receipt of the stolen goods. The trial court reserved ruling on this motion. The prosecutor then indicated the State would proceed on the breaking, entering and larceny counts of the indictments. At the close of the evidence, the trial court ruled it would not charge the jury on the felonious receiving and possession counts leaving the felonious breaking, entering and larceny counts to go to the jury. Defendant contends it was error for the trial judge to reserve ruling on this motion. There is no merit to this argument. A defendant may be found guilty of larceny or receiving but not both. State v. Meshaw, 246 N.C. 205, 98 S.E. 2d 13 (1957). An indictment or a jury charge of both larceny and receiving is not improper, depending upon the evidence presented of the two crimes.

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Cite This Page — Counsel Stack

Bluebook (online)
267 S.E.2d 56, 47 N.C. App. 303, 1980 N.C. App. LEXIS 3081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graham-ncctapp-1980.