STATE of North Carolina
v.
Frank PEELE.
No. 7212SC697.
Court of Appeals of North Carolina.
October 25, 1972. Certiorari Denied December 5, 1972.*70 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood, for the State.
Asst. Public Defender Neill Fleishman, for defendant appellant.
Certiorari Denied by Supreme Court December 5, 1972.
PARKER, Judge.
Appellant first assigns error to denial of his motion to quash the larceny count in the indictment. In support of this assignment he contends that, absent his consent, the trial court had no power to make any change in the bill of indictment as returned by the grand jury, that the larceny count in the bill of indictment in the form in which it had been returned a true bill by *71 the grand jury charged him with larceny of certain particularly described items of property of Joel Noah as well as with larceny of property of Peter Hall, and that, having already been acquitted in the district court of the charge of larceny of the identical property of Joel Noah, his motion to quash the entire larceny count should have been granted.
At the outset, we observe that when facts constituting double jeopardy do not appear from the allegations of the bill of indictment itself, the defense of former jeopardy may not be taken advantage of by motion to quash. State v. Cooke, 248 N.C. 485, 103 S.E.2d 846. However, since the record in the present case is not entirely clear as to what type of motions appellant made before the trial judge and "[s]ince the law looks at substance rather than form," State v. Wilson, 234 N.C. 552, 67 S.E.2d 748, we shall consider appellant's contentions in connection with his first assignment of error as though these were properly presented on the record before us.
At common law the courts had no power to amend matters of substance in a bill of indictment, and in this State there is no statute allowing amendments to bills of indictment. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586. Therefore, "[a]n indictment duly returned upon oath cannot usually be amended by the court without the concurrence of the grand jury by whom it was found or the consent of the defendant." State v. Dowd, 201 N.C. 714, 161 S.E. 205. In the present case the only "amendment" to the indictment made by the trial judge was to strike from the larceny count words which might well be considered mere surplusage. The deletion in no way changed the nature or the degree of the offense charged and we perceive no reason why defendant was not as fully apprised of the charge against him after the deletion as before. Courts of some jurisdictions have expressly approved amendments eliminating a portion of the property described in the indictment, Annot., 15 A.L.R. 3d 1357, § 4, and it may well be that even absent a statute authorizing amendments such a deletion could properly be approved. That question, however, need not be decided on the present appeal. Here, there was no defect in the first count in the bill of indictment and only one sentence was imposed on the jury's verdict finding defendant guilty of the charges contained in both the first and second counts. Since the sentence was fully warranted by the conviction under the first count alone, error, if any, relating solely to the second count is of no avail to defendant. State v. Jackson, 280 N.C. 563, 187 S.E.2d 27; 41 Am.Jur.2d, Indictments and Informations, § 309, p. 1071. Appellant's first assignment of error is accordingly overruled.
The next assignment of error brought forward in appellant's brief is that the trial court erred in allowing the State to introduce evidence concerning the items of property found in defendant's attic as result of the second search of his premises, which was made without a search warrant and at a time when he was not personally present and consenting to the search. This assignment is without merit. The security against unreasonable searches and seizures afforded by the Fourth Amendment to the Constitution of the United States applies solely to governmental action. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048; Barnes v. U.S., 373 F.2d 517 (5th Cir. 1967); United States v. Goldberg, 330 F.2d 30 (3d Cir. 1964), cert. denied, 377 U.S. 953, 84 S. Ct. 1630, 12 L. Ed. 2d 497; Harmon v. (Commonwealth) Virginia, 209 Va. 574, 166 S.E.2d 232. It is not invaded by acts of individuals in which the government has no part. The record in the present case makes manifest that the police in no way participated in the second search and indeed had no knowledge that it had taken place until some months after it occurred. Nothing in the record supports appellant's assertion, made in his brief on this appeal, that the State's witness, Noah, was "a de facto police agent." No violation *72 of appellant's constitutional rights has been shown in the trial court's action permitting the State to introduce evidence concerning the property found in defendant's attic as result of the second search of his house.
Appellant's contention that he suffered prejudicial error when the trial court refused his motion to strike evidence concerning the shotgun and pistol which his friend, Smith, returned to the State's witness, Noah, is also without merit. Nothing in the evidence connected these items directly with the defendant, and if it be granted that the evidence concerning them should have been stricken, we find the error, if any, not sufficiently prejudicial to warrant a new trial in view of the mass of competent evidence which had been admitted to establish defendant's guilt. The burden is upon appellant not only to show error but to show as well that he has been prejudiced thereby and this he has failed to do.
There was no error in denying defendant's motions for nonsuit and for a directed verdict of not guilty. There was substantial evidence which, considered in the light most favorable to the State, would warrant the jury's finding defendant guilty of all material elements of the offenses for which he was tried. This is all that was required to send the case to the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.
The evidence in this case made the doctrine of possession of recently stolen property applicable, and the court's instructions to the jury, considered as a whole, correctly applied that doctrine to the evidence.
We have carefully considered all of appellant's remaining assignments of error, and find no error sufficiently prejudicial to warrant a new trial.
No error.
CAMPBELL and MORRIS, JJ., concur.