State v. . Cannon

Supreme Court of North Carolina

State v. . Cannon

11 S.E.2d 301, 218 N.C. 466, 1940 N.C. LEXIS 15

CourtSupreme Court of North Carolina

DecidedNovember 7, 1940

StatusPublished

Cited by11 cases

This text of 11 S.E.2d 301 (State v. . Cannon) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Cannon, 11 S.E.2d 301, 218 N.C. 466, 1940 N.C. LEXIS 15 (N.C. 1940).

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Opinion

Stacy, C. J.

The record is barren of any evidence of larceny on the part of Howard Cannon, unless the possession by him of the goods on the day following their taking is evidence of such guilt. While it is very generally held that the recent possession of stolen property is a circumstance tending to show the larceny thereof by the possessor (S. v. Best, 202 N. C., 9, 161 S. E., 535), or that it raises a presumption of fact (S. v. Anderson, 162 N. C., 571, 77 S. E., 238), or a presumption of law (S. v. Graves, 72 N. C., 482), of such guilt, still it would seem that on the present record no such presumption should prevail because the State’s evidence shows the larceny to have been committed by others, and fails to connect the defendant in any way with the felonious taking. S. v. Lippard, 183 N. C., 786, 111 S. E., 722; S. v. Anderson, supra. The larceny was completed when the cigarettes were taken from the boxcar and secreted in South Park. The thief himself, a witness for the State, testified that he did not know Mr. Cannon and had never seen *468 him prior to tbe day of trial when be was pointed out to bim in tbe courtroom.

We are constrained to bold, therefore, tbat tbe demurrer to tbe evidence on tbe count of larceny should have been sustained. S. v. English, 214 N. C., 564, 199 S. E., 920.

Tbe demurrer to tbe evidence was properly overruled as to tbe third count. But tbe verdict on this count is insufficient to support tbe judgment. S. v. Lassiter, 208 N. C., 251, 179 S. E., 891; S. v. Barbee, 197 N. C., 248, 148 S. E., 249. It neither alludes to tbe indictment nor uses language to show a conviction of tbe offense charged therein. S. v. Shew, 194 N. C., 690, 140 S. E., 621. It is entirely consistent with tbe defendant’s contention tbat tbe receipt of tbe property was lawful. S. v. Parker, 152 N. C., 790, 67 S. E., 35. “Receiving,” without more, is not a crime. C. S., 4250; S. v. Beal, 200 N. C., 90, 156 S. E., 140.

Tbe defendant is entitled to a venire de novo on tbe third count in tbe bill.

Reversed on second count.

Venire de novo on third count.

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Stacy, C. J.

The record is barren of any evidence of larceny on the part of Howard Cannon, unless the possession by him of the goods on the day following their taking is evidence of such guilt. While it is very generally held that the recent possession of stolen property is a circumstance tending to show the larceny thereof by the possessor (S. v. Best, 202 N. C., 9, 161 S. E., 535), or that it raises a presumption of fact (S. v. Anderson, 162 N. C., 571, 77 S. E., 238), or a presumption of law (S. v. Graves, 72 N. C., 482), of such guilt, still it would seem that on the present record no such presumption should prevail because the State’s evidence shows the larceny to have been committed by others, and fails to connect the defendant in any way with the felonious taking. S. v. Lippard, 183 N. C., 786, 111 S. E., 722; S. v. Anderson, supra. The larceny was completed when the cigarettes were taken from the boxcar and secreted in South Park. The thief himself, a witness for the State, testified that he did not know Mr. Cannon and had never seen *468 him prior to tbe day of trial when be was pointed out to bim in tbe courtroom.

We are constrained to bold, therefore, tbat tbe demurrer to tbe evidence on tbe count of larceny should have been sustained. S. v. English, 214 N. C., 564, 199 S. E., 920.

Tbe demurrer to tbe evidence was properly overruled as to tbe third count. But tbe verdict on this count is insufficient to support tbe judgment. S. v. Lassiter, 208 N. C., 251, 179 S. E., 891; S. v. Barbee, 197 N. C., 248, 148 S. E., 249. It neither alludes to tbe indictment nor uses language to show a conviction of tbe offense charged therein. S. v. Shew, 194 N. C., 690, 140 S. E., 621. It is entirely consistent with tbe defendant’s contention tbat tbe receipt of tbe property was lawful. S. v. Parker, 152 N. C., 790, 67 S. E., 35. “Receiving,” without more, is not a crime. C. S., 4250; S. v. Beal, 200 N. C., 90, 156 S. E., 140.

Tbe defendant is entitled to a venire de novo on tbe third count in tbe bill.

Reversed on second count.

Venire de novo on third count.

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11 S.E.2d 301, 218 N.C. 466, 1940 N.C. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cannon-nc-1940.

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