State v. Weinstein
| Decision Date | 22 November 1944 |
| Docket Number | 433. |
| Parties | STATE v. WEINSTEIN. |
| Court | North Carolina Supreme Court |
streets and that defendant operated trucks thereon for collection of such paper and that a few hours after paper was missed identical paper was found in defendant's possession, giving of instruction on doctrine of inference of guilt from recent possession of stolen property was not prejudicial to defendant.
The defendant was charged with larceny of a quantity of waste paper of the value of $325, the property of the Raleigh Junior Chamber of Commerce, Inc., with a second count in the bill of indictment charging him with receiving said property knowing it to have been stolen.
There was evidence offered by the State tending to show that the Junior Chamber of Commerce had by extensive advertisement asked the people of Raleigh to contribute to it waste paper to be used by it for charitable purposes. By radio and newspaper advertisement the people were requested to prepare the paper in bundles and on a certain day place these bundles on the curb in the street in front of their houses so that collection thereof by the Junior Chamber could be made by use of the city trucks. The date for the collection of this paper was fixed for Sunday, February 20 1944, but, due to rain, by frequent radio announcement the collection was postponed until Monday, February 21, 1:00 P M. However a large quantity of paper bundled and tied as requested was by numerous citizens placed on the street as a donation to the Junior Chamber of Commerce. Much of this became rain soaked.
The defendant, who is a junk and scrap dealer, offered to the Junior Chamber of Commerce $9 per ton for the paper to be thus contributed to it, but this offer was declined as the market price was $12 to $22.
It was testified that on Sunday afternoon it was observed that in response to the request of the Junior Chamber of Commerce, in the northwestern portion of the city alone, 60,000 to 75,000 pounds of waste paper had been placed in bundles on the street, and that on Monday morning 40,000 or 50,000 pounds of this was missing. Numerous witnesses testified that they had donated waste paper and placed it in bundles on the curb as requested, and later recognized some of that found on Monday in defendant's possession as being that contributed by the witnesses to the Junior Chamber of Commerce for the purposes indicated. A truck identified as belonging to defendant and distinguished by an orange crush sign on it was observed gathering waste paper from the curb on certain streets. Another truck, a red truck, belonging to defendant, was found with water soaked paper in bundles, some containing items of paper identified by witnesses as having been given by them and placed on the street for the Junior Chamber of Commerce.
Monday morning, February 21, the defendant was notified his truck with the orange crush sign was picking up paper belonging to the Junior Chamber of Commerce on White Oak Road, but defendant denied it was there. He was then notified not to unload that truck when it came in to his place, and he agreed not to unload any trucks coming in with bundles of paper but to notify the police department. Later he admitted the truck with the orange crush sign had come in, but misdirected the officers as to where it and the paper were. Later he led the officers to where the paper from this truck was being loaded by him into a railroad freight car for shipment. Some of the paper was identified by witnesses as that which had been contributed by them to the Junior Chamber of Commerce and placed on the street for collection. The piles of waste paper, including the paper identified, in the defendant's warehouse and in the freight car and on the truck were estimated to weigh in the aggregate some ten tons or more. The market value was $14 per ton. The paper from the truck with the orange crush sign weighed 1350 pounds.
It also appeared that defendant tried to get the newspaper which advertised the collection of waste paper by the Junior Chamber of Commerce to insert immediately underneath that notice defendant's advertisement to the public note to give their paper away, but sell it to him. This was refused, and defendant became angry and said he was going to get his share of the paper put out on the street.
The defendant offered no evidence, and did not go on the stand.
There was a verdict of guilty on both counts, and the value of the property so found to have been stolen and received was determined to be $100.
From judgment imposing sentence the defendant appealed.
Harry McMullen, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.
Thos. W. Ruffin, of Raleigh, for defendant.
At the outset the defendant assails the correctness of the judgment below on the ground that the evidence was insufficient to warrant submission of the case to the jury. He assigns as error the denial of his motion for judgment as of nonsuit. This motion was based in part upon the view that while the bill of indictment charged the larceny and receiving of waste paper the property of the Junior Chamber of Commerce, the evidence did not show that the title to the property had ever passed to that body.
It is true the allegation of ownership of the property described in a bill of indictment for larceny must be proven substantially as laid, State v. Harris, 195 N.C. 306, 141 S.E 883, else a fatal variance would result, State v. Harbert, 185 N.C. 760, 118 S.E. 6, and this would be available on a motion to nonsuit, State v. Nunley, 224 N.C. 96, 29 S.E.2d 17, but we think there is evidence to support the allegation of ownership. While the paper was contributed by numerous citizens of Raleigh, it was donated by them to the Junior Chamber of Commerce in response to its request, to be used for its charitable purposes. Pursuant to this intent and purpose the paper was placed on the street off the premises of the donors in convenient location and form for collection by the trucks of the Junior Chamber of Commerce. In order to pass the title there must have been both the intention to give and a delivery. Newman v. Bost, 122 N.C. 524, 29 S.E. 848; Bynum v. Fidelity Bank, 219 N.C. 109, 12 S.E.2d 898; Bynum v. Fidelity Bank, 221 N.C. 101, 19 S.E.2d 121. While the delivery may be actual or constructive, the donor's surrender of the property must be complete and his control relinquished. Parker v. Mott, 181 N.C. 435, 107 S.E. 500, 25 A.L.R. 637; Taylor v. Coburn, 202 N.C. 324, 162 S.E. 748; 24 Am.Jur. 742. Applying these principles, we think the evidence here, in the light most favorable for the State, tends to show relinquishment of possession and control of the property by the donors, with intent to give, by placing it off the donors' premises on the street where designated by the donee, and that this was for the purpose of completing the gift and delivering possession of the property to the Junior Chamber of Commerce. Under these circumstances we think this would evidence a divesting of the title to the property on the part of the donors, and vesting title thereto in the donee. Nor would acceptance by the donee have to be manifested by immediate possession if a later time therefor had been fixed and agreed upon by the parties. 24 Am.Jur. 735.
Was there evidence sufficient to sustain, in all...
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