State v. Neill , 244 N.C. 252 ( 1956 )

93 S.E.2d 155 (1956) 244 N.C. 252

STATE
v.
Philip NEILL, Olin Sisk and Bill Reynolds.

No. 296.

Supreme Court of North Carolina.

June 6, 1956.

Wm. B. Rodman, Jr., Atty. Gen., Harry W. McGalliard, and Robert E. Giles, Asst. Attys. Gen., for the State.

Mullen, Holland & Cooke, Gastonia, and Sigmon & Sigmon and Jesse Sigmon Jr., Newton, for defendants.

DENNY, Justice.

The question presented for determination on this appeal is whether or not the court committed error in overruling the defendants' motion for judgment as of nonsuit on the third count, which charges the defendants with receiving stolen goods, knowing them to have been stolen.

The crimes of larceny and receiving stolen goods, knowing them to have been stolen, are separate and distinct offenses and not degrees of the same offense. State v. Brady, 237 N.C. 675, 75 S.E.2d 791; In re Powell, 241 N.C. 288, 84 S.E.2d 906. However, receiving stolen goods is a "sort of secondary crime based upon a prior commission of the primary crime of larceny. It presupposes, but does not include, larceny. Therefore the elements of larceny are not elements of the crime of receiving." State v. Martin, 94 Wash. 313, 162 P. 356, 358.

In Wharton's Criminal Evidence, 10th Edition, Volume 1, section 325b, page 643, the essential elements of the crime of receiving stolen goods which must be proven, are stated as follows: "(a) The stealing of the goods by some other than the accused; (b) that the accused, knowing them to be stolen, received or aided in concealing the goods; and (c) continued such possession or concealment with a dishonest purpose." (Emphasis added.)

In the case of In re Powell, supra [241 N.C. 288, 84 S.E.2d 908], Johnson, J., speaking for the Court, said: "It suffices here to note that the crime of receiving presupposes, as an essential element of the offense, that the property in question had been stolen by some one other than the person charged with the offense of receiving. Therefore, it is manifest that a person cannot be guilty both of stealing property and of receiving the same property knowing it to have been stolen. If the one is true, the other cannot be."

It is essential to a conviction of the crime charged in the third count of the bill of indictment under consideration that the goods received by the defendants were stolen by another and retained that status until they were delivered to the defendants. State v. Collins, 240 N.C. 128, 81 S.E.2d 270.

The evidence adduced in the trial below would seem to have been amply sufficient to have warranted a conviction as to each of these defendants on the first two counts. Recent possession of stolen property will ordinarily raise a presumption of fact, tending to show guilt of the possessor on his trial upon an indictment for larceny. State v. Hullen, 133 N.C. 656, 45 S.E. 513; State v. Record, 151 N.C. 695, 65 S.E. 1010, 25 L.R.A.,N.S., 561, 19 Ann.Cas. 527; State v. Neville, 157 N.C. 591, 72 S.E. 798; State v. Anderson, 162 N.C. 571, 77 S.E. 238; State v. Lippard, 183 N.C. 786, 111 S.E. 722; State v. Reagan, 185 N.C. 710, 117 S.E. 1; State v. Williams, 219 N.C. 365, 13 S.E.2d 617.

In State v. Hullen, supra, this Court said [133 N.C. 656, 45 S.E. 514]: "If recent possession of the stolen goods is evidence that defendant committed the larceny, it must also of necessity be evidence of the fact that the defendant broke and entered the house, because it is evident that the larceny was committed in the house by the person who broke and entered it, and there is no evidence that it was committed in any other way." The inference or presumption arising from the recent possession of stolen property, however, without more, does not extend to the statutory charge, G.S. § 14-71, of receiving stolen property knowing it to have been stolen or taken. State v. Hoskins, 236 N.C. 412, 72 S.E.2d 876; State v. Larkin, 229 N.C. 126, 47 S.E.2d 697; State v. Yow, 227 N.C. 585, 42 S.E.2d 661; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814; State v. Lowe, 204 N.C. 572, 169 S.E. 180; State v. Best, 202 N.C. 9, 161 S.E. 535.

In the trial below, the jury was the trier of the facts upon a charge presumably free from error, since it was not brought forward in the case on appeal. State v. Record, supra. We can only review decisions of the courts below on matters of law or legal inference. Constitution of North Carolina, Article IV, section 8.

A careful consideration of all the evidence disclosed by the record leads us to the conclusion that there is no evidence to support the conviction on the third count in the bill of indictment. It follows, therefore, that the motion for judgment as of nonsuit on that count should have been sustained.

Reversed.