State v. Baker

• Decision Date: 04 May 1938
• Docket Number: 75.
• Citation: 196 S.E. 829,213 N.C. 524
• Parties: STATE v. BAKER.
• Court: North Carolina Supreme Court

196 S.E. 829

213 N.C. 524

STATE v. BAKER.

No. 75.

Supreme Court of North Carolina

May 4, 1938

Appeal from Superior Court, Edgecombe County; Walter J. Bone, Judge.

Louis Baker was convicted of larceny of a cow, and he appeals.

New trial.

The defendant was convicted upon a bill of indictment charging him with the larceny of a cow, the property of R. A. Parker on the 28th day of October, 1937. From judgment of imprisonment, the defendant appealed, assigning error.

In prosecution for larceny of a cow, charge as to presumption arising from possession of recently stolen property was reversible error in that it required defendant to offer proof raising a reasonable doubt as to his guilt.

Battle & Winslow, of Rocky Mount, and Henry C. Bourne, of Tarboro for appellant.

A. A F. Seawell, Atty. Gen., and Harry McMullan and Emmett C. Willis, Asst. Attys. Gen., for the State.

SCHENCK Justice.

There was evidence tending to show that the cow of R. A. Parker was stolen from his barn at Conetoe, Edgecombe county, on Thursday night, October 28, 1937, and that the cow was found in the possession of the defendant near Goldsboro, Wayne county, on Wednesday, November 3, 1937. The defendant testified that he bought the cow from the truck of an unknown man just outside of Smithfield, Johnston county, on Monday, November 1, 1937.

The defendant assigns as error the following excerpt from his honor's charge:

"Now, gentlemen, there is a rule of law with respect to recent possession of stolen property. There is a presumption arising from such recent possession that the one in whose possession it is found is guilty of the larceny of that property. It is not a presumption of law but a presumption of fact, and is one which may be rebutted. If you find beyond a reasonable doubt, the burden of proof being on the State, that this cow was stolen from Mr. Parker on Thursday, October 28, and that on the following Wednesday that the same cow was in the possession of the defendant, that would raise a presumption of fact that he was the person who stole the cow. Now that presumption, gentlemen, has the effect of placing upon the defendant the duty of offering an explanation as to the possession. It does not require that he offer such explanation as would satisfy you beyond a reasonable doubt that he did not steal the cow or such an explanation that would convince you by the greater weight of the evidence that he did not steal the cow, nor does he have the duty of offering such explanation as would satisfy your minds even that he was not a thief but he is only under the duty to offer

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