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State v. McKoy

144 S.E.2d 46, 265 N.C. 380, 1965 N.C. LEXIS 989
CourtSupreme Court of North Carolina
DecidedSeptember 29, 1965
Docket169
StatusPublished
Cited by19 cases

This text of 144 S.E.2d 46 (State v. McKoy) is published on Counsel Stack Legal Research, covering Supreme Court 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. McKoy, 144 S.E.2d 46, 265 N.C. 380, 1965 N.C. LEXIS 989 (N.C. 1965).

Opinion

PbR CtjRiam.

There was plenary evidence to support the verdict of guilty as to the first count in the bill of indictment. Moreover, defendant’s assignments do not disclose error deemed sufficiently prejudicial to warrant a new trial as to the first count. Hence, the verdict and judgment with reference to said first count are upheld.

It is noted: Under G.S. 14-72, as amended in 1959 (S.L. 1959, c. 1285), larceny by breaking and entering a building referred to therein is a felony without regard to the value of the stolen property. S. v. Cooper, 256 N.C. 372, 378, 124 S.E. 2d 91; S. v. Jones, 264 N.C. 134, 137, 141 S.E. 2d 27. The comment made before pronouncing judgment indicates the court may have overlooked said 1959 amendment. If so, it would seem defendant was a beneficiary of such oversight.

The second (larceny) count in the bill of indictment is fatally defective. While it alleges the larceny of “$60.00 in money,” it fails to designate in any manner the owner thereof or the person in possession thereof at the time of the alleged unlawful taking. The space in the printed form for the name of the owner is blank. Moreover, the second (larceny) count contains no reference to the first (breaking and entering) count. In an indictment containing several counts, each count should be complete in itself. S. v. McCollum, 181 N.C. 584, 107 S.E. 309. As to the insufficiency of the second (larceny) count, see S. v. Biller, 252 N.C. 783, 114 S.E. 2d 659; also, S. v. Thornton, 251 N.C. 658, 111 S.E. 2d 901, and cases cited therein.

Since the second (larceny) count is fatally defective and insufficient to confer jurisdiction, this Court ex mero motu arrests the judgment pronounced with reference thereto. However, the solicitor, if so advised, may submit to another grand jury a new bill with reference to the alleged larceny and proceed against the defendant upon a sufficient indictment.

As to first (breaking and entering) count: No error.

As to second (larceny) count: Judgment arrested.

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Bluebook (online)
144 S.E.2d 46, 265 N.C. 380, 1965 N.C. LEXIS 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckoy-nc-1965.