State v. Parker , 268 N.C. 258 ( 1966 )

150 S.E.2d 428 (1966) 268 N.C. 258

STATE
v.
Sonny PARKER, Jr.

No. 249.

Supreme Court of North Carolina.

October 12, 1966.

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

W. Herbert Brown, Jr., Charlotte, for defendant, appellant.

BRANCH, Justice.

Defendant's principal assignment of error challenges the sufficiency of the evidence to go to the jury and sustain the verdict. This is, admittedly, a case of circumstantial evidence. The rule in respect to the sufficiency of circumstantial evidence to carry a case to the jury has been clearly and succinctly stated by Higgins, J., in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431, as follows:

"We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, 908, quoting from State v. Johnson, 199 N.C. 429, 154 S.E. 730: ``If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.' The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury. (Citing cases)."

This case was quoted with approval by Parker, C. J., in the case of State v. Roux, 266 N.C. 555, 146 S.E.2d 654.

We must simply determine whether there is substantial evidence against the defendant of every essential element that goes to make up the offense charged.

The defendant is charged with breaking and entering with intent to commit a felony and larceny of property of the value of less than $200.

There is ample evidence that the store building occupied by Robert Hall Clothing Store was feloniously broken into and entered on the 28th day of January 1966, and that property was stolen therefrom.

It is a well recognized legal principle in North Carolina that: "If and when it is established that a store has been broken into and entered and that merchandise has been stolen therefrom, the recent possession of such stolen merchandise raises presumptions of fact that the possessor is guilty of the larceny and of the breaking and entering." State v. Allison, 265 N.C. 512, 144 S.E.2d 578.

In the case of State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725, Chief Justice Stacy, in discussing this principle, stated:

"``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 the defendant's guilt. The duty to offer such explanation of his possession as is sufficient to raise in the minds of the jury a reasonable doubt that he stole the property, or the burden of establishing a reasonable doubt as to his guilt, is not placed on the defendant, however recent the possession by him of the stolen goods may have been'— Schenck, J., in State v. Baker, 213 N.C. 524, 196 S.E. 829."

In the instant case we have no direct evidence that the defendant was in "recent possession" of the stolen property. A period of four days had elapsed since the stolen property had been definitely placed in the possession of Robert Hall Clothing Store. There was no evidence placing defendant in the store at the time of the breaking and entering. The State relied on the theory of "recent possession" and upon the existence of unidentified and unclassified blood on the suit, the suit hanger, and at the scene of the crime. The strongest evidence revealed in the record placing the alleged stolen property in the possession of the defendant was by a witness who testified, in effect, that he saw "a person who looked just like the defendant drop something on the tracks." The witness further said, "I am not for sure that this defendant was the man I shined my lights on," and "(I) cannot say beyond a reasonable doubt that the defendant was the man I shined my lights on on this occasion." Another person later found the suit, which was identified as belonging to Robert Hall Clothing Store. We might here observe that the record shows that five suits were missing from Robert Hall Clothing Store and only one was found in the vicinity where the defendant was apprehended. None of the other suits were accounted for in the record. There was no direct and clear evidence placing the stolen goods in the possession of defendant.

"A basic requirement of circumstantial evidence is reasonable inference from established facts. Inference may not be based on inference. Every inference must stand upon some clear and direct evidence, and not upon some other inference or presumption. [Citing cases]." Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411.

After a careful examination of the record and applying the well established rules of law, we conclude that the evidence is insufficient to support the indictments, and that the defendant's motion for nonsuit should have been allowed.

We deem it unnecessary to consider the defendant's other assignment of error.

Reversed.