State v. Ellers , 234 N.C. 42 ( 1951 )

65 S.E.2d 503 (1951) 234 N.C. 42

STATE
v.
ELLERS.

No. 724.

Supreme Court of North Carolina.

June 7, 1951.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

T. S. Royster, Oxford, for defendant.

DENNY, Justice.

The only evidence that tends to show that Ellers may have gotten any of the money taken from Taylor's Store, is found in Cockrell's testimony. And his testimony in this respect is to the effect that he gave Ellers a dollar, but in response to a direct question as to whether he gave him a dollar that he had stolen from Taylor's Store, he stated that he had other money of his own. Moreover, he testified that he smoked the cigarettes and that the two or three dollars in change taken from Taylor's Store was hid with the other money.

The burden being upon the State to show beyond a reasonable doubt that the defendant was guilty of the crime charged, it is our opinion that the State's evidence with respect to receiving under that count, in bill No. 26968-(a), was insufficient to justify its submission to the jury. "Evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury." State v. Vinson, 63 N.C. 335; State v. Carter, 204 N.C. 304, 168 S.E. 204; State v. Madden, 212 N.C. 56, 192 S.E. 859; State v. Adams, 213 N.C. 243, 195 S.E. 822; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Webb, 233 N.C. 382, 64 S.E.2d 268; State v. Jarrell, N.C., 65 S.E.2d 304.

The ruling of the court below on the motion for judgment as of nonsuit on the count charging the defendant with receiving stolen goods, knowing them to have been stolen, in bill No. 26968-(a), is reversed.

As to the ruling of the court on the motion for judgment as of nonsuit on the count in bill No. 26968-(b), charging the defendant with receiving, we think the evidence offered by the State was sufficient to warrant its submission to the jury. State v. Stathos, 208 N.C. 456, 181 S.E. 273; State v. Wilson, 176 N.C. 751, 97 S.E. 496. "To constitute the crime of receiving it is not necessary that the stolen goods should be traced to the actual personal possession of the person charged." State v. Stroud, 95 N.C. 626. Actual or constructive possession of property, knowing or having reasonable grounds to believe that it has been stolen, is sufficient to support a conviction of the crime of receiving. 53 C.J., Sec. 8, p. 505; State v. Anthony, 206 N.C. 120, 173 S.E. 47; Longman v. Commonwealth, 167 Va. 461, 188 S.E. 144, 145. In the last cited case the court held that "While reception of the stolen goods by the accused must be substantially proven, actual physical handling by him is not necessary. It is well settled that constructive possession is sufficient."

However, when the jury returned its verdict of guilty under bill No. 26968-(b), and the court then permitted the witness, on whose testimony the State relied for the conviction of defendant, to take the stand and repudiate his testimony as to the presence of the defendant when the witness and Bell counted the money stolen from the Blind Shop, in the front room of defendant's home, the court should have allowed the motion of defendant to set the verdict aside.

This evidence did not merely tend to contradict a former witness or to impeach or discredit him, State v. Casey, 201 N.C. 620, 161 S.E. 81, but it was a repudiation of his own testimony, without which the State did not offer sufficient evidence to support a conviction of the crime of receiving. Therefore, the decisions ordinarily applicable to newly discovered evidence will not be held as controlling upon a factual situation like that disclosed by the present record.

The verdict will be set aside and a new trial is ordered.

Bill No. 26968-(a)—Reversed.

Bill No. 26968-(b)—New Trial.