State v. Jackson, 4 N.C. App. 459

State v. Jackson

4 N.C. App. 459 | N.C. Ct. App. | 1969

Morris, J.

The court’s charge contained the following:

“If and when it is established that the store has been broken into and entered, and that merchandise has been stolen therefrom, the recent possession of such stolen merchandise raises presumptions of fact that the possessor is guilty of the larceny and of the breaking and entering.”

This was the extent of the charge by the trial court on the doctrine of “recent possession” and this portion of the charge, we think, constituted error. In State v. Holbrook, 223 N.C. 622, 27 S.E. 2d 725, Stacy, C.J., in a thorough discussion of the doctrine of recent possession, makes it clear that the doctrine does not place upon the defendant the burden to “raise in the minds of the jury a reasonable doubt that he stole the property, or the burden of establishing a *462reasonable doubt as to his guilt.” The doctrine “is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant’s guilt.” State v. Baker, 213 N.C. 524, 196 S.E. 829. We think the instruction quoted above, this being the entire instruction given on the doctrine of “recent possession”, did not sufficiently explain to the jury that possession of recently stolen property was only to be considered along with the other evidence in the case in determining whether the State had satisfied the jury beyond a reasonable doubt of the defendant’s guilt. An instruction that is open to interpretation that the burden is upon the defendant to rebut the presumption of his guilt is erroneous. State v. Holbrook, supra; State v. Hayes, 273 N.C. 712, 161 S.E. 2d 185. Further, the trial court, in its charge, failed to require the jury to find from the evidence and beyond a reasonable doubt that the television sets found in defendant’s possession were the same television sets that were taken from the Johnston Furniture Company. “The Judge committed error in failing to charge the presumption or inference does not apply until the identity of the property is established.” State v. Jackson, 274 N.C. 594, 164 S.E. 2d 369.

In charging the jury on felonious intent, the court stated that if the breaking and entering “was done without the intent to commit the felony of larceny or other infamous crime, then you would so indicate by your verdict; that is, he would be guilty of a misdemeanor.” (Emphasis added.) The indictment under which the defendant was tried stated that he did break or enter the Johnston Furniture Company with the intent to steal, etc. “Felonious intent is an essential element of the crime defined in C.S., 4235 (G.S. 14-54). It must be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the 'intent to steal.’ ” State v. Friddle, 223 N.C. 258, 25 S.E. 2d 751. “The indictment having identified the intent necessary, the State was held to the proof of that intent.” State v. Thorpe, 274 N.C. 457, 164 S.E. 2d 171. On the basis of these authorities, the underscored portion of the charge quoted above would appear to be erroneous.

For errors committed in the charge to the jury there must be a new trial. Other errors assigned, such as an apparent discrepancy between the indictment description of the stolen property and the evidence, are not discussed since they are not likely to re-occur.

New trial.

Campbell and BeocK, JJ., concur.