State v. Larkin

WjNBORNE, J.

The evidence shown in the record, considered in the light most favorable to the State, is sufficient to take the case to the jury on the charge, under G. S., 14-71, of receiving the automobile in question, knowing it to have been feloniously stolen or taken. Hence the assignment of error based upon exception to denial of defendant’s motion for judgment as of nonsuit entered at close of all the evidence is held to be untenable.

However, defendant properly assigns as error the portion of the charge in which the court instructed the jury as follows: “There is no presumption of guilt because he had this car in his possession; that is a presumption of fact for you to consider, but not a presumption of guilt.”

The effect of this instruction is that while in the trial of a person on a charge of receiving property knowing it to have been feloniously stolen or taken, recent possession of the stolen property raises no presumption of guilt, it is a presumption of fact for the jury to consider in passing upon the guilt or innocence of defendant. This runs counter to the established rule of law in this State, and entitled defendant to a new trial.

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 statutory charge (G. S., 14-71) of receiving such property knowing it to have been feloniously stolen or taken.

S. v. Adams, 133 N. C., 667 , 45 S. E., 553 ;

S. v. Best, 202 N. C., 9 , 161 S. E., 535 ;

S. v. *128 Lowe, 204 N. C., 572 , 169 S. E., 180 . See also S. v. Oxendine, 223 N. C., 659 , 27 S. E. (2d), 814 .

For error indicated above, let there be a New trial.