State v. Oxendine

• Decision Date: 01 December 1943
• Docket Number: 580.
• Citation: 27 S.E.2d 814,223 N.C. 659
• Parties: STATE v. OXENDINE et al.
• Court: North Carolina Supreme Court

27 S.E.2d 814

223 N.C. 659

STATE v. OXENDINE et al.

No. 580.

Supreme Court of North Carolina

December 1, 1943

Criminal prosecutions tried upon indictments charging each of the defendants in separate bills with receiving goods and chattels, specifically described and valued, the property of Leo Smith, knowing the same to have been feloniously stolen or taken in violation of C.S. § 4250.

By consent, the three cases were consolidated and tried together, as they all grow out of sales made on a single trip, under similar circumstances and in close succession.

The record discloses that on Sunday night, April 4 1943, two escaped convicts and one James Williams broke into Leo Smith's store in Scotland County and stole a quantity of merchandise, including flour, sugar, canned goods cigarettes, tobacco and eggs. They put the property in a stolen Chevrolet automobile and drove a distance of 25 or 30 miles over into Robeson County, first stopping and making a sale at some woman's house, and then arrived at the home of Nunn Oxendine, a tenant farmer, whom Williams knew, about 1:30 or 2 a.m. The two convicts who were well dressed in civilian clothes and who were strangers to Oxendine told him that they had been operating a store, but had received their calls to the Army and had to report the following Friday that they were trying to dispose of their goods and had only a short time in which to peddle them out. Oxendine replied that he did not particularly need anything, but as he had a son in the Army then in Africa, he would be glad to make a small purchase if it would be of help to them. He thereupon purchased four bags of flour, some canned goods, tobacco and eggs, and paid the fair market value, $13 or $14, for the goods.

The thieves then drove on a distance of two or three hundred yards to the home of Archie Ransom where they saw the defendants Ransom and Hilton Oxendine. The convicts repeated the same story which they had told Nunn Oxendine relative to being merchants and receiving their calls to the Army and trying to dispose of their stock of goods by peddling them out. Here they sold 60 or 75 pounds of sugar, two cartons of cigarettes and five dozen eggs. Archie Ransom paid $12 for the goods, their fair market value. Hilton Oxendine made no purchase as he had no money, albeit there is evidence to the effect that both made the purchase and Ransom advanced the money.

Later that same day, when the officers came to search for the goods, after arresting the thieves, Nunn Oxendine made no effort to conceal anything. He frankly stated his connection with the purchase. Archie Ransom and Hilton Oxendine first denied the purchase, then later admitted receipt of some of the goods. They denied purchasing any cigarettes, and these were not recovered, if they actually received them.

James Williams who was used by the State as a witness said on cross-examination that the defendants "didn't know anything about the property being stolen" when they made the purchases.

Verdicts: Guilty as charged as to each defendant.

Judgments: Six months on the roads as to each defendant.

The defendants appeal, assigning as error the refusal to sustain their demurrers to the evidence and to dismiss the actions as in cases of nonsuit.

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

W.S. Britt, T.A. McNeill, and McLean & Stacy, all of Lumberton, for defendants.

STACY Chief Justice.

[1, 2] The question for decision is whether the cases as made can survive the demurrers. Specifically, the question posed is whether the evidence warrants the finding that each of the defendants, with felonious intent, received the respective articles of merchandise, the property of Leo Smith, knowing at the time that the same had been feloniously stolen or taken in violation of C.S.§ 4250. State v. Miller, 212 N.C. 361, 193 S.E. 388; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. Caveness, 78 N.C. 484. We are disposed to think the element of scienter is wanting. State v. Spaulding, 211 N.C. 63, 188 S.E. 647. Apparently the circumstances are not such as to justify an inference of guilty knowledge on the part of the defendants. State v. Stathos, 208 N.C. 456, 181 S.E. 273; State v. Wilson, 176 N.C. 751, 97 S.E. 496.

The one fact in Nunn Oxendine's case urged as a circumstance to support an inference of scienter, is the unusual hour of the night at which the property was brought to his house. State v. Gordon, 105 Minn. 217, 117 N.W. 483, 15 Ann.Cas. 897. In the cases of the other two defendants, the additional fact of their having first denied to the officers that they had purchased any of the merchandise, is also urged as indicating guilty knowledge on their part. Birdsong v State, 120 Ga. 850, 48 S.E. 329. These are the only inculpating circumstances on the record. They may be sufficient to excite suspicion, somewhat strong perhaps, but they apparently leave too much to surmise or assumption to carry the cases to the jury. State v. Epps, 214 N.C. 577, 200 S.E. 20; State v. Jones, 215 N.C. 660, 2 S.E.2d 867. The...