State v. . Jones

40 S.E.2d 458, 227 N.C. 47, 1946 N.C. LEXIS 345

• Court: Supreme Court of North Carolina
• Decided: December 11, 1946
• Status: Published

Opinion

Stacy, C. J.

We are disposed to think there must have been some error in recording the verdict in this ease. It makes no reference to the second bill. Indeed, it may be doubted whether it sufficiently refers to the first to support a judgment. S. v. Allen, 224 N. C., 530, 31 S. E. (2d), 530; S. v. Lassiter, 208 N. C., 251, 179 S. E., 891; S. v. Barbee, 197 N. C., 248, 148 S. E., 249; S. v. Perry, 225 N. C., 174, 33 S. E. (2d), 869, and cases there cited. But however this may be, there appears to be an inadvertence in the charge in respect of the presumption arising from the recent possession of stolen property, which requires another hearing.

The court instructed the jury as follows: “Another principle of law the court will call to your attention is, that where property is stolen, and where a person is found in the recent possession of such stolen property, then such recent possession of such stolen property raises a presumption of fact that the person who is in such recent possession is the thief. That he committed the larceny, but such presumption is strong or weak according to the length of time which has passed between the time of the commission of the larceny and the time when the person is found in possession of it.” Exception.

It would appear that the only evidence to which this instruction could properly apply is that tending to show the Ancona rooster in the possession of Clarence Wood at his home in Lee County some 16 or 20 days after the alleged theft. This possession, while a pertinent circumstance, would seem to be without presumptive significance under what was said in S. v. Holbrook, 223 N. C., 622, 27 S. E. (2d), 725; S. v. Weinstein, 224 N. C., 645, 31 S. E. (2d), 920, and cases there cited.

The evidence tending to show that the defendant Jones, accompanied by some one who looked like the defendant Wood, sold a number of “white chickens” in Greensboro on 12 February, 1946, raises no presumption that they were stolen from John Henry Stokes. His were not white chickens. And even if this evidence be regarded as pointing to the “White Eoek hens” of Eiley Ashburn, it would be limited to the charge contained in the second bill of indictment. It is not so limited in the court’s instruction, and the verdict speaks only to the bill concerning the chickens stolen from John Henry Stokes. It was inappropriate as applied to this bill. S. v. Adams, 133 N. C., 667, 45 S. E., 553.

Then, too, there is no evidence that the chickens sold in Greensboro were White Eock hens — only that they were white chickens. The identity of the fruits of the crime must be established before the 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. S. v. Rights, 82 N. C., 675; S. v. Patterson, 78 N. C., 470.

Again referring to the condition of the record, we may add that verdicts and judgments in criminal cases ought to be clear and free from ambiguity or uncertainty. The matters involved — the enforcement of the criminal law and the liberty of the citizen — are worthy of exactitude. S. v. Shew, 194 N. C., 690, 140 S. E., 621; S. v. Whitaker, 89 N. C., 472; S. v. Gooding, 194 N. C., 271, 139 S. E., 436; In re Parker, 225 N. C., 369, 35 S. E. (2d), 169.

The defendants’ remaining exceptions, some of which have been pressed with confidence and vigor, especially the assignment that they are charged with misdemeanors and have been punished as for felonies, G. S., 14-72, are pretermitted as they may not arise on another hearing.

New trial.