STATE of North Carolina
v.
Tony Martin BAILEY.
No. 7426SC1039.
Court of Appeals of North Carolina.
April 16, 1975.*401 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jesse C. Brake, Raleigh, for the State.
David R. Badger, Charlotte, for defendant appellant.
MARTIN, Judge.
The bill of indictment clearly charged defendant with the offense of larceny. It was necessary, therefore, for the State to establish the elements of larceny by sufficient competent evidence.
Defendant contends that the evidence, considered in a light most favorable to the State, might sustain a conviction under G.S. § 14-168.1 for misdemeanor conversion of property by a tenant but that such evidence does not support a conviction for felonious larceny. This is so, he argues, because there is no evidence of a taking by trespass.
G.S. § 14-168.1 provides that "[e]very person entrusted with any property as bailee, lessee, tenant or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same, or the proceeds thereof, to his own use, or secretes it with a fraudulent intent to convert it to his own use, shall be guilty of a misdemeanor."
"Larceny is a common law offense, defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965)." State v. Wooten, 18 N.C.App. 652, 197 S.E.2d 614 (1973). "Every larceny includes a trespass; and if there be no trespass in taking the goods, there can be no felony committed in carrying them away." State v. Webb, 87 N.C. 558. An act of trespass, therefore, is an essential element in the crime of larceny. Indeed, it was because of this requirement that embezzlement statutes were enacted. Thus, it has been said that "[t]he only difference. . . between larceny and embezzlement is that in the former there must be a trespass, while in the latter that is not necessary." State v. McDonald, 133 N.C. 680, 45 S.E. 582 (1903). At the risk of belaboring the distinction, we find it stated in the following succinct manner:
"Ordinarily, a basic distinction between the two offenses is that in embezzlement the property comes lawfully into the possession of the offender, and is subsequently unlawfully appropriated by him, whereas in larceny the offender, instead of having prior lawful possession of the property, takes it unlawfully in the first instance, thereby committing a trespass against another's possession." Annot., 146 A.L.R. 532, 541 (1943).
In response to defendant's contention that no trespass was committed in the taking, the State argues that defendant's lawful possession of the furniture ended with his abandonment of the leasehold so that a trespass was committed at the time of the taking. In the present case, the State's argument beclouds the issue. The issue is whether defendant was in lawful possession of the furniture at the time is was allegedly taken and carried away by him. If he was in lawful possession then there was no trespass *402 in the taking and, hence, no larceny at common law.
It is all too clear that defendant was in lawful possession of the furniture at the time of the taking. As distinguished from legal or lawful possession, it is stated that one having the mere custody of personal property of another may be found guilty of larceny where he feloniously appropriates the property to his own use. Annot., 125 A.L.R. 367 (1940). However, here the furniture was in the trailer for defendant's use and enjoyment, and he had complete access as well as control over it by virtue of his tenancy even though title remained in the landlord. Defendant's possession lasted over six months, and it cannot be said that he only had mere custody of the furniture. There is no evidence that defendant initially acquired possession of the furniture with the intent to convert it to his own uses. "Generally one who lawfully acquired possession of the goods or money of another cannot commit larceny by feloniously converting them to his own use, for the reason that larceny, being a criminal trespass on the right of possession, . . ., cannot be committed by one who, being invested with that right, is consequently incapable of trespassing on it." 52A C.J.S. Larceny § 31, p. 458.
There being no evidence of a taking by trespass, the defendant's motion for nonsuit of the charge of larceny should have been allowed.
Reversed.
BROCK, C. J., and VAUGHN, J., concur.