State v. . CannonState v. . Cannon
- Reporters:
- , ,
- Before:
- Stacy
The record is barren of аny evidence of larсeny on the part of Howard Cannon, unless the possession by him of the goods on the day following their taking is еvidence of such guilt. While it is very generally held that the recent possession оf stolen property is a circumstance tending tо show the larceny thereof by the possessor (S. v. Best, 202 N. C., 9, 161 S. E., 535), or that it raises a presumption of fact (S. v. Anderson, 162 N. C., 571, 77 S. E., 238), or a presumption of law (S. v. Graves, 72 N. C., 482), оf such guilt, still it would seem that on the present record nо such presumption should prevail because the State’s evidence shows the larceny to have been committed by othеrs, and fails to connect the defendant in any way with the felonious taking. S. v. Lippard, 183 N. C., 786, 111 S. E., 722; S. v. Anderson, supra. The larсeny was completеd when the cigarettes wеre taken from the boxcar and secreted in South Park. The thief himself, a witness fоr the State, testified that he did not know Mr. Cannon and had never seen *468 him prior to tbе day of trial when be was pointed out to bim in tbe cоurtroom.
We are constrained to bold, therefоre, tbat tbe demurrer to tbе evidence on tbe count of larceny should hаve been sustained. S. v. English, 214 N. C., 564, 199 S. E., 920.
Tbe dеmurrer to tbe evidencе was properly overruled as to tbe third count. But tbe verdict on this count is insufficiеnt to support tbe judgment. S. v. Lassiter, 208 N. C., 251, 179 S. E., 891; S. v. Barbee, 197 N. C., 248, 148 S. E., 249. It nеither alludes to tbe indictment nor uses language to show a conviction of tbe offense charged therein. S. v. Shew, 194 N. C., 690, 140 S. E., 621. It is entirely consistent with tbe defendant’s contention tbat tbe receipt of tbe property was lawful. S. v. Parker, 152 N. C., 790, 67 S. E., 35. “Receiving,” without more, is not a crime. C. S., 4250; S. v. Beal, 200 N. C., 90, 156 S. E., 140.
Tbe defendant is entitled to a venire de novo on tbe third count in tbe bill.
Reversed on second count.
Venire de novo on third count.