While in the record of case on appeal here presented appellants group eighty-two assignments of error, based upon like number of exceptions, and in their brief filed in this Court refer to twenty-five of the exceptions so grouped, the underlying question is this: Was the search of the automobile of defendant Jones unlawful? The answer is No.
In the recent case of S. v. McPeak, 243 N.C. 243, 90 S.E. 2d 501, opinion by Parker, J., it is stated by this Court that: “It is well settled law that a person may waive his right to be free from unreasonable searches and seizures. A consent to search will constitute such waiver, only if it clearly appears that the person voluntarily consented, or permitted or expressly invited and agreed to the search. Where the person voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated,” citing among others the case of S. v. Moore, 240 N.C. 749, 83 S.E. 2d 912, where many cases are assembled.
In the light of undisputed testimony Jones lead the officers to his car, and on the way told them that four ladies’ suits were in the trunk of the car. And then on arriving at the car, took the key from under the floor mat and opened the trunk and a bag, which contained the suits. This constitutes voluntary consent to the search, and a waiver of his rights to be free from unreasonable search and seizure.
Such being the case, and taking the evidence in the light most favorable to the State, as is done when considering demurrer to the evidence, did the court properly deny defendants’ motions for judgment as of nonsuit?
As to defendant Brown: The trial judge held, and instructed the jury, that the count charging defendant Brown with receiving stolen property, knowing it to have been stolen, would not be submitted. This was tantamount to granting a nonsuit on this charge. Therefore the action of the judge in overruling the demurrer to the evidence necessarily related only to the count against her charging larceny. And the voluntary statement of this defendant that she and Jones had been shoplifting; *544that they went to Ellis-Stone’s, and she got two suits, — those in the car, and that they went to Lerner’s and she got the hat and pocket book, is sufficient to support a verdict of guilty as to the charges of larceny preferred against her. Hence the general verdict as to her will be interpreted in the light of the instruction so given by the court.
And as to defendant Jones: The evidence against him, taken in the light most favorable to the State, is not sufficient to support verdict of guilty on the counts charging the crime of receiving stolen property, knowing it to have been stolen. But under the doctrine as to recent possession, S. v. Neill, 244 N.C. 252, 93 S.E. 2d 155, the evidence is sufficient to support a verdict of guilty of the charges of larceny. Thus there is error in overruling Jones’ demurrer to the evidence as it related to the counts charging receiving stolen property.
Moreover, since larceny and receiving stolen property are two separate and distinct criminal offenses, “the nature of which is such that guilt of one necessarily excludes guilt of the other,” as stated by Bobbitt, J., in S. v. Meshaw, 246 N.C. 205, 98 S.E. 2d 13, the defendant Jones could be guilty of one or the other, but not both. S. v. Neill, supra. So, on general verdict of guilty as charged it would be impossible to determine to which count the verdict related, and, hence, a new trial must be awarded to defendant Jones. S. v. Meshaw, supra. Other points discussed in brief filed need not be considered.
For reasons stated: In the judgment as to defendant Brown, there is
No Error.
In the case against defendant Jones, New Trial is ordered.