This appeal from a conviction of grand larceny involves the rule permitting an inference * of guilt from possession of recently stolen goods.
*5 The defendant was arrested at about 1:00 a. m. for driving an unsafe automobile with expired tаgs and without a proper operator’s license. The police officer saw thrеe new tires on the hack seat of the car with dealer sticker affixed. Upon the officer’s request, the defendant produced the key to the trunk where the officer found six more new tires with dealer stickers attached. The nine tires were of the same makes and sizes as had been reported stolen from a service station, about 40 miles away, less than two hours еarlier.
Three other persons were in the car with the defendant at the time of the arrest. The defendant and two of the passengers were charged with grand larceny and conspiracy. At the close of the State’s case, which was based entirely upon the inference or presumption arising from possession of recently stolen goods, the Trial Court grantеd motions of acquittal as to the passengers, upon the basis of Flamer v. State, Del.Supr.,
I.
The dеfendant contends that the stolen tires were not sufficiently identified to warrant submission of the case to the jury. There is no merit to this contention. The tire sizes and makes were sufficiently identicаl to permit submission of the issue of identity to the jury. See Henry v. State, Del.Supr.,
Nor is there any merit to thе contention that fatal error was committed in permitting identification of the tires from phоtographs. Any weakness in such identification goes to the weight, rather than to the admissibility, of the evidence.
II.
The defendant contends that possession alone, arising from his admitted contrоl and dominion of the automobile, is not sufficient to permit an inference of guilt as to the theft of the tires found therein, absent other evidence of complicity in the offense chаrged. For this position, the defendant relies upon Flamer.
Our decision in
Flamer
was not intended to stand for that propоsition. Under the specific facts in
Flamer,
we held that, in view of the admission by the passengers in the automobile of their joint possession and guilt, other evidence of complicity was necessary before a presumption of guilt as to the theft would attach to the driver by reason of his custody and cbntrol of the car. The rule of
Flamer
is to be limited to its facts; it is not to be expanded to the general rule, here sought, relieving the custodian of an automobile from the inferеnce of guilt arising from the possession of recently stolen goods, long recognized in this jurisdiction. E. g., State v. White,
The requisites for the inference here under consideration are the same whether recently stolen goods are found in an automobile or in a residence. The bаsic question in both situations is whether, under the totality of the circumstances, the evidence is suffiсient to warrant the conclusion that the defendant had actual possession, i. e., conscious dominion and control over the recently stolen property. See Crawley v. Stаte, Del.Supr.,
In the instant case, the totality of the circumstances compels the conclusion that the
*6
defendant-operator of the automobile had conscious dominion and control over the recently stolen tires found on the back seat of the car and in the trunk to which the defendant had the key. The invocation of the inferеnce of guilt against the defendant was clearly proper in this case, in view of the prоximity of the time and place of the theft, and the nature, bulk, and condition of the stolen property. See Commonwealth v. Shaffer,
It is held, therefore, that the Trial Court did not err in denying the defеndant’s motion for acquittal based upon the lack of additional evidence of cоmplicity to supplement the evidence of possession. Insofar as Flamer is inconsistent herewith, it is no longer controlling.
Affirmed.
Notes
For comment upon the comparative nature of “inference” vs. “presumption” in this connection, sеe Flamer v. State, Del.Supr.,