11 S.E.2d 301 | N.C. | 1940
Criminal prosecution tried upon indictment charging the defendant Howard Cannon, and others, in three counts, (1) with breaking and entering a boxcar and building, (2) with the larceny of two cases of Phillip Morris cigarettes, of the value of $137.00, the property of the Seaboard Air Line Railway Company, and (3) with receiving said cigarettes, etc., knowing them to have been feloniously stolen or taken in violation of C. S., 4250.
The State's evidence tends to show that on 24 January, 1940, James McNeill and Frank Sapp, Negroes, stole some cigarettes from a boxcar of the Seaboard Air Line Railway, hid them in South Park, city of Raleigh, and on the following day sold them to C. E. Reece, who in turn sold them to his brother-in-law, Howard Cannon. Reece used Cannon's car in going after the cigarettes. Cannon admitted receiving the cigarettes from Reece, but denied any knowledge of their having been stolen.
The defendant's demurrer to the evidence was sustained on the first count and overruled as to the second and third counts in the bill of indictment.
Verdict: "Guilty of larceny and receiving."
Judgment: Imprisonment in the State's Prison from not less than three nor more than five years.
Defendant appeals, assigning errors.
The record is barren of any evidence of larceny on the part of Howard Cannon, unless the possession by him of the goods on the day following their taking is evidence of such guilt. While it is very generally held that the recent possession of stolen property is a circumstance tending to show the larceny thereof by the possessor (S. v. Best,
We are constrained to hold, therefore, that the demurrer to the evidence on the count of larceny should have been sustained. S. v. English,
The demurrer to the evidence was properly overruled as to the third count. But the verdict on this count is insufficient to support the judgment. S. v. Lassiter,
The defendant is entitled to a venire de novo on the third count in the bill.
Reversed on second count.
Venire de novo on third count.