State v. Raynes , 272 N.C. 488 ( 1968 )

158 S.E.2d 351 (1968) 272 N.C. 488

STATE of North Carolina
v.
Paul Bruce RAYNES.

No. 501.

Supreme Court of North Carolina.

January 12, 1968.

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., for the State.

Douglas F. DeBank, Raleigh, for defendant appellant.

HIGGINS, Justice.

The appellant's Assignments of Error Nos. 1, 2, 3 and 4 involve (1) the Solicitor's leading questions; (2) the Court's permitting Tutor to testify about, and identify certain stolen articles because they were not set out in the bill of indictment; (3) the same objection with reference to the testimony of the State's witness Winslow, and (4) the introduction in evidence of an unidentified Hamilton watch, although the owner testified he recognized it because of certain scratches on the case. These assignments of error are without merit. Likewise, Assignment of Error No. 6, based upon the failure to direct a verdict of not guilty, and No. 9 for failure to set the verdict aside, are without merit.

By Assignment of Error No. 5, the appellant challenges the admissibility of the articles found in the Lane automobile at the time appellant and Winslow and Mrs. Lane were arrested. The ground for the objection is the lack of authority to make the search. The appellant was a passenger in the vehicle. He was neither the driver nor the owner. The Court, on the voir dire, heard evidence and ruled the search was consented to by the owner, Mrs. Lane, and that this being so, the search was legal as to all occupants. The evidence supported the finding and the conclusion. State v. Temple, 269 N.C. 57, 152 S.E.2d 206; State v. Belk, 268 N.C. 320, 150 S.E.2d 481; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. McPeak, 243 N.C. 243, 90 S. E.2d 501. The case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 is not in conflict. In that case, Jones was in charge of premises searched without a warrant.

The defendant, by Assignment of Error No. 7, alleges the Court committed error in failing to charge on the larceny count that if the jury failed to convict on the breaking and entering count and failed to find the value of the stolen goods exceeded $200, that the jury should convict only of a misdemeanor. The bill charged larceny of goods of the value of $541.75. The evidence disclosed that $400 to $500 in money was taken and other personal property extending the value to $700 to $800. The jury found the defendant "guilty of breaking and entering and larceny as charged in the bill of indictment". Larceny in consequence of a felonious breaking and entering is a felony regardless of the value of the property stolen from the building. State v. Hagler, 268 N.C. 360, 150 S.E.2d 521. When one judgment is entered after conviction of more than one count in a multiple count bill, the judgment will be sustained if the punishment does not exceed that which is permissible on the count which carries the greater or greatest punishment. In this case, either count would support a judgment of imprisonment up to 10 years.

Finally, the defendant contends he is entitled to a new trial because of this instruction: "When a person is found in possession of recent (sic) stolen property, slight corroborative evidence of other inculpatory circumstances tending to show guilt will support conviction". Immediately before giving the challenged instruction, the Court charged:

"* * * 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 his guilt."

It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances—the time between the theft and the possession, the type of property involved, and its legitimate availability in the community. The possession of an unmarked carton of Camel cigarettes, even in a short time after cigarettes have been stolen, in the absence of some further identification, will not be as strong as the possession of a recently stolen pillowcase, a three-strand pearl necklace, a diamond wedding band, a Hamilton watch, and a Norelco electric razor, and several hundred dollars in nickels, dimes, quarters and half-dollars. The possession of these stolen articles on Sunday morning following a breaking on the previous afternoon presents a strong case of circumstantial evidence. Careful review discloses

No error.