State v. Holbrook

• Decision Date: 24 November 1943
• Docket Number: 217.
• Citation: 27 S.E.2d 725,223 N.C. 622
• Parties: STATE v. HOLBROOK.
• Court: North Carolina Supreme Court

27 S.E.2d 725

223 N.C. 622

STATE v. HOLBROOK.

No. 217.

Supreme Court of North Carolina

November 24, 1943

Criminal prosecution tried upon indictment charging the defendant in two counts (1) with the larceny of four Chevrolet Pick-up wheels, four tires and four tubes of the value of $125, the property of Claude Pardue, and (2) with receiving said wheels, tires and tubes, knowing them to have been feloniously stolen or taken in violation of C.S. § 4250.

It is in evidence that on the night of 24 April, 1942, four wheels, with tires and tubes, were removed from Claude Pardue's Pick-up truck, which was parked in the driveway of his barn where he kept it.

On 5 May following, or eleven days after the theft, one of the stolen tires, and maybe two, were found on a car in defendant's possession. Later, two more were found in the possession of Rom Billings, who said he bought them from the defendant "about the first of May". The wheels were found by some boys in the woods approximately four miles from Pardue's home, and halfway between Pardue's barn and where the defendant was found in possession of one or two of the tires.

The defendant denied removing any auto parts, wheels, tires or tubes, from Pardue's truck. He said that he bought four tires for $50 at a service station from "a guy by the name of Slim", but did not know that they belonged to Pardue or that they had been stolen. He sold two of them to Rom Billings for $45.

Verdict "Guilty of larceny of tires".

Judgment: Imprisonment for not less than 12 nor more than 18 months.

The defendant appeals, assigning errors.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Trivette & Holshouser, of Boone, for defendant.

STACY Chief Justice.

The defendant is charged with larceny and receiving. He challenges the sufficiency of the evidence to carry the case to the jury on either count. He was convicted of larceny. Nothing is said in the verdict about the second count. This is tantamount to an acquittal on the charge of receiving. State v. Taylor, 84 N.C. 773; State v Hampton, 210 N.C. 283, 186 S.E. 251.

The defendant's demurrer to the evidence was properly overruled. The evidence tends to connect him with the theft and permit the inference that he participated therein as principal. State v. Williams, 219 N.C. 365, 13 S.E.2d 617; State v. Record, 151 N.C. 695, 65 S.E. 1010, 25 L.R.A.,N.S., 561, 19 Ann.Cas. 527. State v. Hullen, 133 N.C. 656, 45 S.E. 513. Recent possession of stolen property has always been considered a circumstance tending to show the guilt of the possessor on his trial R.A.,N.S., 561, 19 Ann.Cas. 527; State v. Reagan, 185 N.C. 710, 117 S.E. 1; State v. Neville, 157 N.C. 591, 72 S.E. 798.

"Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence". Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 898, 40 L.Ed. 1090.

The only exception of serious import on the record is the one addressed to the following portion of the charge: "The State, gentlemen of the jury, relies upon a theory or rule of law to the effect that one who is found in possession of property that has recently been stolen is presumed to be guilty of the theft. That is a presumption of fact and not of law. It is one that may be rebutted, and it is strong or weak as the possession is more or less recent after the taking".

It is conceded that, on the facts presented, authorities may be found seemingly in support of this instruction. State v. Riley, 188 N.C. 72, 123 S.E. 303; State v. Patterson, 78 N.C. 470. Others may be cited seemingly against it. State v. Lippard, 183 N.C. 786, 111 S.E. 722; State v. Rights, 82 N.C. 675.

No criterion is to be found in the books for ascertaining just what possession is to be regarded as "recent" and therefore of presumptive evidentiary value. State v. McRae, 120 N.C. 608, 27 S.E. 78, 58 Am.St.Rep. 808. The term is a relative one and depends on the circumstances of the case. All agree, however, upon the statement of the rule in respect of "recent possession" of stolen property; and the presumptions arising therefrom--strong, probable, slight or weak, depending on the circumstances--are well understood. State v. Jennett, 88 N.C. 665. "The possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker, as the possession is nearer to or more distant from the time of the commission of the offence". State v. Patterson, 78 N.C. 470. "Ordinarily it is stronger or weaker in proportion to the period intervening between the stealing and the finding in possession of the accused; and after the lapse of a considerable time before a possession is shown in the accused, the law does not infer his guilt, but leaves that question to the jury under the consideration of all the circumstances." State v. Rights, supra.

"The presumption that the possessor is the thief which arises from the possession of stolen goods is a presumption of fact and not of law, and is strong or weak as the time elapsing between the stealing of the goods and the finding of them in the possession of the defendant is short or long. This presumption is to be considered by the jury merely as an evidential fact, along with the other evidence in the case in determining whether the state has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt. The duty to offer such explanation of his possession as is sufficient to raise in the minds of the jury a reasonable doubt that he stole the property,...