State v. . Jones
40 S.E.2d 458
N.C.
1946
Check Treatment
Stacy, C. J.

We are disposed to think there must have been some error in recording the verdict in this ease. It makes no reference to the *49 second bill. Indeed, it may be doubted whether it sufficiently ‍​​​​​‌​​‌​​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​​‌‌​‌‌‍refers to the first to support a judgment. S. v. Allen, 224 N. C., 530, 31 S. E. (2d), 530; S. v. Lassiter, 208 N. C., 251, 179 S. E., 891; S. v. Barbee, 197 N. C., 248, 148 S. E., 249; S. v. Perry, 225 N. C., 174, 33 S. E. (2d), 869, and cases there cited. But however this may be, there appears to bе an inadvertence in the charge in respect of the presumption arising from the recent possession of stolen property, which requires another hearing.

The cоurt instructed the jury as follows: “Another principle of law the court will call to your attention is, that where property is stolen, and where a person is found in the recent possession of such stolen property, then such recent pоssession of such stolen property raises a presumption of fact that ‍​​​​​‌​​‌​​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​​‌‌​‌‌‍the person who is in such recent possession is the thief. That he committed the larceny, but such presumption is strong or weak according to the length of time whiсh has passed between the time of the commission of the larceny and the time when the person is found in possession of it.” Exception.

It would appear that the only evidence to which this instruction could properly apply is thаt tending to show the Ancona rooster in the possession of Clarence Wood at his home in Lee County some 16 or 20 dаys after the alleged theft. This possession, while a pertinent circumstance, would seem to be without presumptive signifiсance under what was said in S. v. Holbrook, 223 N. C., 622, 27 S. E. (2d), 725; S. v. Weinstein, 224 N. C., 645, 31 S. E. (2d), 920, and cases there cited.

The evidence tending to show that the defendant Jones, accompanied by some оne who looked like the defendant Wood, sold a number оf “white chickens” in Greensboro on 12 February, 1946, raises no prеsumption that they were stolen from John Henry Stokes. His were nоt white chickens. And even if this evidence be regarded as ‍​​​​​‌​​‌​​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​​‌‌​‌‌‍рointing to the “White Eoek hens” of Eiley Ashburn, it would be limited to the charge contained in the second bill of indictment. It is not so limited in thе court’s instruction, and the verdict speaks only to the bill cоncerning the chickens stolen from John Henry Stokes. It was inappropriate as applied to this bill. S. v. Adams, 133 N. C., 667, 45 S. E., 553.

Then, too, therе is no evidence that the chickens sold in Greensboro wеre White Eock hens — only that they were white chickens. The identity of the fruits of the crime must be established before the prеsumption of recent possession can apply. Thе presumption is not in aid of identifying or locating the stolen property, but in tracking down the thief upon its discovery. S. v. Rights, 82 N. C., 675; S. v. Patterson, 78 N. C., 470.

Again referring to the condition of the record, we may add that verdicts and judgments in criminal cases ‍​​​​​‌​​‌​​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​​‌‌​‌‌‍ought to be clear and freе from ambiguity or uncertainty. The matters involved — the enforcеment of the *50 criminal law and the liberty of the citizen — are worthy of exactitude. S. v. Shew, 194 N. C., 690, 140 S. E., 621; S. v. Whitaker, 89 N. C., 472; S. v. Gooding, 194 N. C., 271, 139 S. E., 436; In re Parker, 225 N. C., 369, 35 S. E. (2d), 169.

The defendants’ remaining exceptiоns, some of which have been pressed with confidencе and vigor, especially the assignment that they are charged ‍​​​​​‌​​‌​​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​​‌‌​‌‌‍with misdemeanors and have been punished as for felonies, G. S., 14-72, are pretermitted as they may not arise on another hearing.

New trial.