State v. Fair , 291 N.C. 171 ( 1976 )

229 S.E.2d 189 (1976) 291 N.C. 171

STATE of North Carolina
v.
Randolph Thomas FAIR.

No. 50.

Supreme Court of North Carolina.

November 4, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell and Associate Atty. Sandra M. King, Raleigh, for the State.

Don H. Bumgardner, Gastonia, for defendant-appellant.

COPELAND, Justice.

Defendant assigns as error the trial judge's failure to charge the jury that the doctrine of recent possession was applicable only if the jury found beyond a reasonable doubt that the cuff links discovered in the defendant's possession were stolen at the same time and place as the items listed in the bill of indictment.

The State relied heavily on the doctrine of recent possession. Upon an indictment for larceny, recent possession of stolen property has always been considered by this Court as a circumstance tending to show the guilt of the possessor. State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Hullen, 133 N.C. 656, 45 S.E. 513 (1903); State v. Graves, 72 N.C. 482 (1875). Similarly, recent possession is evidence of the fact that the defendant broke and entered the house when the breaking and entering was necessary to enable the thief to gain access to the property. State v. Jackson, 274 N.C. 594, 164 S.E.2d 369 (1968); State v. Bell, supra; State v. Hullen, supra.

The presumption, or inference as it is more properly called, is one of fact and not of law. The inference derived from recent possession "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." State v. Baker, 213 N.C. 524, 526, 196 S.E. 829, 830 (1938); accord State v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976); State v. Bell, supra. Proof of recent possession by the State does not shift the burden of proof to the defendant but the burden remains with the State to demonstrate defendant's guilt beyond a reasonable doubt. State v. Greene, supra, State v. Baker, supra.

The State in order to invoke the permissible inference must prove beyond a reasonable doubt each fact necessary to give rise to the inference. See State v. Jackson, supra; N.C.P.I—Crim. § 104.40 (June 1972). "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." State v. Parker, 268 N.C. 258, 262, 150 S.E.2d 428, 431 (1966); accord State v. Greene, supra.

The inference that the person in possession of the goods is the thief arises upon proof beyond a reasonable doubt that (1) the property described in the indictment was stolen; (2) the property shown to have been possessed by the accused was the stolen property, and (3) the possession was recently after the larceny. State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966). It follows that where the defendant is indicted for stealing items different from those actually found in his possession, the inference cannot arise unless it is also shown that the property in his possession was stolen at the same time and place as the property listed in the bill of indictment. State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). See State v. Hullen, supra.

The jury should have been instructed that in order for the doctrine of recent possession to apply they must find beyond a reasonable doubt that the cuff links were stolen at the same time and place as the other property for which defendant stands indicted. The failure to so instruct was error and, under the facts of this case, we cannot say that it was harmless. The cuff links were not listed in the original police report as stolen, and a warrant was taken out alleging that the cuff links were stolen by another person on a different day.

Thus, the defendant is entitled to a

NEW TRIAL.