State v. Jackson , 274 N.C. 594 ( 1968 )

164 S.E.2d 369 (1968) 274 N.C. 594

STATE of North Carolina
v.
Arthur JACKSON, alias Harvey Mills.

No. 575.

Supreme Court of North Carolina.

December 11, 1968.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

John H. Rennick, Salisbury, for defendant.

HIGGINS, Justice.

The Court's charge contained the following:

"As recent possession of stolen goods is evidence that the defendant committed the larceny, it may also be evidence that the larceny was committed in the house by the person who broke and entered it. Proof of possession by the defendant shortly after the breaking and entering, that is, possession of the goods alleged to have been stolen, is to be considered by the jury; and, if unexplained, and if breaking and entering by someone is shown, it will be sufficient when accompanied by other circumstances tending to connect him with the commission of the offense to warrant conviction, although the other evidence might not alone be sufficient. In other words, where recent possession of stolen property is considered relevant, it raises a presumption of the breaking and entry and of larceny, and the presumption is stronger or weaker depending upon the time which has elapsed since the property was stolen, when the property was stolen."

The denomination of the bills found on the defendant, and Mr. Steele's evidence with respect to his identity, were sufficient to go to the jury on both counts in the indictment. State v. Allison, 265 N.C. 512, 144 S.E.2d 578; State v. Lambert, 196 N.C. 524, 146 S.E.2d 139; State v. Williams, 187 N.C. 492, 122 S.E. 13.

However, before the defendant's guilt on either count may be inferred from the defendant's unexplained possession of the money, the jury should have been required to find from the evidence and beyond a reasonable doubt that the money in the defendant's possession was the identical money taken from the Steele home. Evidence or inference of guilt arising from the unexplained possession of recently stolen property is strong, or weak, or fades out entirely, on the basis of the time interval between the theft and the possession. The inference arising from the possession of recently stolen property is described as "the recent possession doctrine." Possession may be recent, but the theft may have occurred long before. In that event, no inference of guilt whatever arises. Actually, the possession of recently stolen goods gives rise to the inference. The possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly. State v. Foster, 268 N.C. 480, 151 S.E.2d 62; State v. Jones, 227 N.C. 47, 40 S.E.2d 458; State v. Patterson, 78 N.C. 470; State v. Kent, 65 N.C. 311.

The Court's charge failed to require the jury to find from the evidence and beyond a reasonable doubt that the bills found on the defendant were the same bills stolen from the Steele home. If so found, the inference of guilt applied to the theft and likewise to the breaking and entering which was necessary to enable a thief to gain access to the property. State v. Jones, supra; State v. Neill, 244 N.C. 252, 93 S.E. 2d 155; State v. Hullen, 133 N.C. 656, 45 S.E. 513. The Judge committed error in failing to charge the presumption or inference does not apply until the identity of the property is established.

The defendant's counsel, appointed to perfect the appeal, was without experience in criminal procedure. After notice of appeal was given, however, he made inquiries of the Clerk of this Court and the Attorney General with respect to the preparation and service of the case on appeal and the time the appeal was due in the Supreme Court. The case on appeal was filed here long after it was due. However, the Attorney General has seen fit to file a brief and has failed to move that the appeal be dismissed for failure to docket in time. We have, however, treated counsel's inquiries as a petition for certiorari. We have allowed the petition and considered the appeal on its merits. The trial was held, judgment was entered, and notice of appeal was given prior to October 1, 1967, and hence to be considered here rather than in the North Carolina Court of Appeals.

For the failure of the Judge to require the State to carry the burden of showing the identity of the stolen property, the defendant is entitled to a

New trial.