State v. Majette

ARNOLD, Judge.

Defendants assert that the court erred in allowing the State’s motion to join their trials. They argue that the State failed to comply with G.S. 15A-951 (a) (2) and (3) which requires the grounds for the motion and the relief sought to be set forth in writing. Their argument is without merit. The written motion cited G.S. 15A-926, the joinder statute, as grounds for the motion, and the relief sought was adequately set forth, i.e., the joinder of the two cases for trial.

There is also no merit to defendants’ contention that the court abused its discretion in allowing the joinder because defendants were not given adequate notice. Each defendant was indicted for the same offenses. We can find no abuse of discretion by the trial judge, and no prejudice to defendants by the joinder of their trials.

Defendants contend that the trial judge improperly defined reasonable doubt in his initial definition of reasonable doubt. His Honor later instructed on the meaning of reasonable doubt substantially as approved in State v. Hammonds, 241 N.C. 226, 85 S.E. 2d 133 (1954), but defendants assert the initial definition of “reasonable doubt” in terms of a “possibility of innocence” was error. While the phrase “possibility of innocence” has not been approved it has been held to be more favorable to defendants than approved phrases, and thus defendants show no prejudice in this portion of the charge. State v. Bryant, 282 N.C. 92, 191 S.E. 2d 745 (1972); State v. West, 21 N.C. App. 58, 203 S.E. 2d 86 (1974); State v. Greene, 17 N.C. App. 51, 193 S.E. 2d 331 (1972); State v. Edwards, 15 N.C. App. 718, 189 S.E. 2d 492 (1972); State v. Chaney, 15 N.C. App. 166, 189 S.E. 2d 594 (1972); State v. Perry, 13 N.C. App. 304, 185 S.E. 2d 467 (1971).

Defendants also contend that the trial judge invaded the province of the jury and showed favoritism to the State’s case by giving the jury written instructions with respect to the elements of felonious breaking and entering and felonious larceny pursuant to breaking or entering. The written instructions given the jury correctly stated the elements of each crime, and on the authority of State v. Frank, 284 N.C. 137, 146, 147, 200 S.E. 2d 169 (1973), we find no error in His Honor’s use of written instructions.

Defendant Majette assigns error to the failure of the trial judge to limit his instructions regarding the doctrine of possession of recently stolen property to defendant Gordon. There is merit in his position. The State’s evidence established that the property was found two days after it was stolen in defendant Gordon’s house. In his charge the trial judge instructed the jury to apply the doctrine of possession of recently stolen property to both defendants.

The doctrine of possession of recently stolen property is a factual presumption whereby a person found in the unexplained possession of recently stolen property is presumed to be the thief. State v. Lewis, 281 N.C. 564, 189 S.E. 2d 216 (1972); State v. Fink, 26 N.C. App. 430, 216 S.E. 2d 473 (1975). No evidence was presented which tended to show that defendant Majette was ever in possession, actual or constructive, of the recently stolen property. The instructions to apply the doctrine of possession of recently stolen property were prejudicial error as to defendant Majette.

As to defendant Gordon — no error.

As to defendant Majette — new trial.

Judges Parker and Hedrick concur.