State v. Hoskins

72 S.E.2d 876 (1952) 236 N.C. 412

STATE
v.
HOSKINS et al.

No. 297.

Supreme Court of North Carolina.

November 5, 1952.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

Norris C. Reed, Jr., and Charles L. Abernethy, Jr., New Bern, for defendant appellant.

WINBORNE, Justice.

The criminal offense of which defendant, appellant, stands convicted is creature of statute, G.S. § 14-71, as amended by 1949 Session Laws, Chap. 145, Sec. 1, which declares in pertinent part that "If any person shall receive any * * * property * * * the stealing or taking whereof amounts to larcency * * * such person knowing the same to have been feloniously stolen or taken, he shall be guilty of a criminal offense * * *."

And it is the holding of this Court that the inference or presumption arising from the recent possession of stolen property, without more, does not extend to the above statutory charge, G.S. § 14-71, as amended, of receiving such property knowing it to have been feloniously stolen or taken. State v. Adams, 133 N.C. 667, 45 S.E. 553; State v. Best, 202 N.C. 9, 161 S.E. 535; State v. Lowe, 204 N.C. 572, 169 S.E. 180; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814; State v. Larkin, 229 N.C. 126, 47 S.E.2d 697.

Applying the provisions of the statute and this principle to the evidence offered upon the trial below, taken in the light most favorable to the State, it shows recent possession of the stolen automobile tires, and nothing more, and is insufficient to make out a case for the jury on the charge of receiving the automobile tires of Jake Hill, described by the officer, knowing that they had been feloniously stolen or taken.

Indeed, the testimony of the officers, offered by the State, as to statements of defendant in respect to the automobile tires, stolen from Jake Hill, tend to wholly exculpate defendant of the charge of receiving them. By offering such statements, the State thereby presents them as worthy of belief. See State v. Hendrick, 232 N.C. 447, at page 456, 61 S.E.2d 349, and cases there cited. "When the State offers evidence which tends to exculpate the defendant, he is entitled to whatever advantage the testimony affords and so, when it is wholly exculpatory, he is entitled to his acquittal." State v. Robinson, 229 N.C. 647, 50 S.E.2d 740, 741.

Hence the judgment from which this appeal is taken is hereby reversed.