State v. Foster, 494

• Decision Date: 23 November 1966
• Docket Number: No. 494,494
• Citation: 268 N.C. 480,151 S.E.2d 62
• Court: North Carolina Supreme Court
• Parties: STATE, v. Wallace Elee FOSTER.

Page 62

151 S.E.2d 62

268 N.C. 480

STATE, v. Wallace Elee FOSTER.

No. 494.

Supreme Court of North Carolina.

Nov. 23, 1966.

Atty. Gen., T. W. Bruton and Asst. Atty. Gen., James, F. Bullock for the State.

Richard L. Brown, Jr., Albemarle, for defendant appellant.

PARKER, Chief Justice.

The State and defendant presented evidence. Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence.

The evidence of the State tends to show these facts: Floyd Hinson operates a Phillips '66' service station in the Frog Pond community, Stanley County, adjacent to Highway $27, about eight and one-half miles from the town of Albemarle. About 7:30 p.m. on 31 December 1965 he left his service station with all the windows down and fastened and all the doors closed and locked. Hinson returned to his service station a few minutes before 2 a.m. on 1 January 1966 and found that it had been broken into. He called the sheriff of the County. While waiting for the sheriff to arrive, he discovered that six Phillips '66' tires were missing that had been in his storeroom when he closed the night before and left. These six tires consisted of two 775 $ 14 Deluxe action tread, white wall tires; two 775 $ 15 safety action tread, black wall tires; and two 825 $ 14 premium action tread, white wall tires. There were also missing six cartons of cigarettes. He went over to his grease pit and found that his used battery charger, which was in the grease pit the night before, was missing. This battery charger was white with a red trim. On 5 January 1966 he saw his used battery charger at the county jail. It had been freshly repainted. He identified the battery charger as his property by what looks like a cigarette burn that was on the charger when he got it. The charger originally had a three-prong plug, and one prong was broken off when he purchased it. It is now standard for a battery charger of this type to have three electrode plugs on it. He saw two automobile tires at the county jail and four automobile tires on a car in the police station. These six tires were of the same size and tread design that were stolen from his service station. The four tires on the automobile were all white walls, and the other two were black walls. The value of his used battery charger and of the six tires he saw at the county jail would be more than $200. Floyd Hinson testified on cross-examination: 'I would not swear that those six tires are the same tires that I had at my service station, but I'll swear that they are the same size, tread design, and in the same order as those that got away from my service station.'

On 31 December 1965 and during the early part of January 1966 Jackie Foster and his brother, the defendant, operated a garage and body shop business located at 910 East 18th Street in the city of Charlotte. On 5 January 1966 Dwight Farmer, a deputy sheriff of Stanly County, went to the garage and body shop business located at 910 East 18th Street in the city of Charlotte, which was operated by Jackie Foster and his brother, the defendant. On entering this garage and body shop building he observed the battery charger, which Floyd Hinson identified as his, and two new Phillips '66' black wall tires in the back of the garage. The two tires were in the trunk of a 1955 or 1956 Ford automobile. The outside of the battery charger had the appearance of being freshly painted. He took these articles in custody and carried them to the town of Albemarle. Defendant was not in the building when he was there. He saw there Jackie Foster, a brother of the defendant.

Hoyle Lowder, a member of the Albemarle police department, saw defendant on West Main Street in the town of Albemarle on the night of 1 January 1966. He saw him again on 4 January 1966 on West Main Street in the town of Albemarle between 8:30 and 9:00 p.m. driving a white 1959 Oldsmobile. Nobody was in the car with him. The Oldsmobile defendant was driving on the night of 4 January 1966 had on it four new Phillips '66' white wall tires. Lowder took the automobile to the police department. The tires on this Oldsmobile were taken off and exhibited in court as State's Exhibit No. 2.

William D. Foster, a brother of defendant and a witness for the State, testified in substance: He is a mechanic employed by his brother, the defendant. He first saw this electric battery charger on Saturday morning in his brother's garage. There were paint cans on the floor when his brother and defendant moved into the building. The night before, he left the garage and closed it, and the next morning he saw this battery charger in the back of the garage. When he saw it in the back of the garage, defendant and several persons were there. He saw two tires in the back of the car that same morning. He last saw the battery charger when the officers picked it up and carried it away. He knows nothing about how the battery charger and the tires got into the building. He and his brother, the defendant, had keys to the garage.

Defendant did not testify in his own behalf, but offered the testimony of three witnesses.

Jackie Foster, brother of defendant and a witness for defendant, testified in substance: he first saw the battery charger introduced in evidence by the State on 2 January 1966 when a man by the name of John Langford came by the garage operated by defendant and himself selling second-hand merchandise. That day he bought from John Langford four 14-inch white wall tires, two 15-inch black wall tires, a battery charger, and a .22 rifle, and paid him $100 for them. He kept the battery charger in the back part of the garage. He sold four white wall tires and the rifle to John Threat. John Threat put these four tires on his 1959 Oldsmobile. He kept the other two black wall tires in the garage in another car that they had got on a transaction for work being done on another car. On cross-examination Jackie Foster testified in substance: John Threat, his girl friend Yvonne Cahoon, and defendant were in the garage when he bought the battery charger and the tires from John Langford. The articles that he purchased from John Langford were worth about $300. He did not know the items were stolen. The battery charger looked like it had been freshly painted. He came to the town of Albemarle on the night of 4 or 5 January 1966 with Threat and defendant in Threat's 1959 Oldsmobile. That night he and Threat were arrested at the Pepper Pot Grill in Albemarle.

John Threat testified in substance for defendant: He worked part time with defendant and his brother. He went to their garage about 8:30 a.m. on 2 January 1966 and saw Jackie Foster purchase the battery charger, six automobile tires, and a rifle from a man he had never seen before. Later on that morning he bought the four white wall tires from Jackie Foster for $10 each and put them on his 1959 Oldsmobile, and he also bought from Jackie Foster for $20 the .22 rifle. On the night of 4 or 5 January 1966, he, Jackie Foster, and defendant came to the town of Albemarle in his 1959 Oldsmobile. At that time the .22 rifle was in his car. He had intended to take it out at his home but forgot it. He was arrested at the Pepper Pot Grill in Albemarle.

Yvonne Cahoon, a witness for defendant, testified in substance: On the morning of 2 January 1966 she went to the Foster garage with John Threat. She saw a man whom she did not know pushing a battery charger in the door. She saw a money transaction between Jackie Foster and this man. She also saw a man whom she did not know take some automobile tires into the garage.

After the defendant rested his case, the State offered as a witness H. A. Simmons, a deputy sheriff of Stanley County, who testified in substance: Somewhere around the premises of Hinson's service station that was broken into on the night of 31 December 1965 he made a plaster cast of a heel print. He sent this plaster cast of the heel print and the shoes of defendant to the F.B.I. laboratory in Washington, D.C. The F.B.I. laboratory sent back to him the plaster paris cast and defendant's shoes and a report of the result of its examination reading as follows: 'Result of examination. Heelprints on the glass and cast were found to have been produced by heels of the same design as the heels on the submitted shoes. However, no specific wear characteristics or measurements in common were found which would enable a determination whether the questioned prints were made by these particular shoes. The submitted evidence will be returned to you separately.'

The State contends that its evidence considered in the light most favorable to it is sufficient to carry the case to the jury by virtue of the principle of law known as recent possession of stolen property by the accused. The rule itself indicates the conditions under which it operates, and to bring it into play there must be proof of three things: (1) That the property described in the indictment was stolen, the mere fact of finding one man's property in another man's possession raising no presumption that the latter stole it; (2) that the property shown to have been possessed by accused was the stolen property; and (3) that the possession was recently after the larceny, since mere possession of stolen property raises no presumption of guilt. State v. Parker, 268 N.C. 258, 150 S.E.2d 428; State v. Jones, 227 N.C. 47, 40 S.E.2d 458; State v. Norggins, 215 N.C. 220, 1 S.E.2d 533; 3 Strong' N.C. Index, Larceny, § 5; 52 C.J.S. Larceny § 105; 32 Am.Jur., Larceny, §§ 122, 138.

'The identity of the fruits of the crime must be established before thr presumption of recent possession can apply. The presumption is not in aid of identifying or locating the stolen property, but in tracking down the thief upon its discovery.' State v. Jones, supra.

The State has ample evidence that Floyd Hinson's service station was broken into and entered during the nighttime, and that there were...