State v. . Neville, 72 S.E. 798

State v. . Neville

72 S.E. 798

N.C.

1911

Check Treatment

Walxer, J.,

after stating the case: We will have to deal, in this case, largely with the question as to the nature of the evidence and its legal significance, and it is, therefore, necessary to examine thе testimony introduced by the State and the defendant, in order to ascertain if, in any view of it, the defendant was entitled, without asking for them, to special instructions upon the law relating to recent possession and circumstantial evidence. We do not think the case called for specific instructions of the kind defendant now contends should have been given. The evidence, when prоperly viewed, tended either to acquit or convict the defendant, without the necessity of any special consideration of the probative force of recent possessiоn or of evidence by circumstances. The proof on the part of the State, briefly stated, was that the defendant and Cole, his .nephew, it must be understood, being younger than he was and naturally undеr his influence, had agreed, at. the defendant’s solicitation, to meet at a certain place for the purpose of trading horses, but really with the design of stealing the mule, as the gravely suspicious circumstances strongly indicate. They met in Burlington, according to agreement, or by accident, which makes no difference, and drove in a buggy to the bridge over the creek two miles from W. L. Spoon’s and three miles from the prosecutor’s home. There was evidently a conspiracy to steal the mule, and that would seem to have been the sole object of the. journey, the swapping of horses being a mere sham or pretense, as the jury apparently found it to be. The defendant left John Cole, the State’s witness, and went to W. L. Spoon’s home, where he got а saddle and bridle. He then went to the stable of the prosecutor and got the mule and rode him to the *595 meeting place at tbe bridge, where be told Cole tbat be bad swapped tbe colt for tbe mule. He tben sent Cole on bis way to Virginia witb tbe mule, for tbe purpose of selling or trading bim, armed bim witb a pistol for protection and supplied bim witb money for tbe journey, and when be returned, aftеr tbe sale of tbe mule, be received a part of tbe money and tbe pistol from Cole.

Upon tbis statement of tbe facts, we do not see bow tbe defendant could bave been benefited by a charge from tbe court as to tbe weight which they should give to tbe fact of recent possession. If Cole told tbe truth and tbe jury believed him, tbe possession of tbe mule by tbe defendant was аbout as recent as it was possible for it to be; but tbe judge, instead of instructing tbe jury tbat, owing to its nature, tbe law raised a presumption of guilt from such a possession, be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍told tbe jury tbat they should consider it аs only a circumstance, in passing upon tbe defendant’s guilt, for be nowhere charged tbe jury tbat there was any presumption, either of law or fact, as to tbe defendant’s guilt. Tbis charge was much mоre favorable to tbe defendant than it would bave been if tbe court bad told tbe jury, in accordance witb tbe rule of law, tbat special weight should be given to tbe fact of recent possession. Tbe charge is sustained by tbe case of S. v. Hullen, 133 N. C., 656, in which tbe Court said: “Eecent possession of stolen property has always been considered as a circumstance tending to show tbe guilt оf tbe possessor on bis trial upon an indictment for larceny. It is not necessary tbat we should here draw any nice distinction concerning tbe presumptions of guilt based on recent possession as being strong, probable, or weak, because tbe. court in its charge, to which there was no exception, instructed tbe jury tbat tbe recent possession of tbe defendant was only a circumstance to be weighed by them in passing upon bis guilt, and tbis charge is sustained, we believe, by all tbe authorities. S. v. Graves, 72 N. C., 482; S. v. Watts, 82 N. C., 657; S. v. Jennett, 88 N. C., 665; S. v. McRae, 120 N. C., 608.”

The rule in regard to recent possession of stolen goods was thus stated in S. v. Graves, 72 N. C., 482, by Chief Justice Pearson: “Tbe rule is tbis: ‘When goods are stolen, one found *596 in possession so soon thereafter that be could not home reason^ ably got the possession unless be bad stolen them himself, the law presumes be was the thiеf.’ This is simply a deduction of common sense, and when the fact is so plain that there can be no mistake about it, our courts, following the practice in England, where the judge is allowed to express his opinion as to the weight of the evidence, have adopted it as a rule of law, which the judge is at liberty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to act on, notwithstanding the statute which forbids a judge from intimating an opinion as to thе weight of the evidence.” It is said in that case that this presumption of law is subject to some qualifications, depending upon the recency of the possession and the other facts and circumstances of the particular ease. We need not decide whether the presumption of guilt was strong or weak in this case, as a matter of law, as the judge simply gave to it the force and effect of a bare circumstance against the defendant, to be considered by them in passing upon the question of his guilt or innocence. In S. v. McRae, 120 N. C., 608, it was held that the presumption of guilt arising from recent possession of stolen property is strong, slight, or weak, according to the particular facts surrounding any given case, and the cases are very rare in which the presumption оf guilt can be held, as matter of law, to be strong, though the presumption in this case is stronger than usual, owing to the other facts and circumstances, as the possession of the defendant, when first discоvered by Cole, was very recent after the theft had been committed, and the circumstances of the case surrounding it tended very strongly to convince a reasonable man that the defеndant was the thief.

It is unnecessary, though, to consider this question any further, as the charge of the court was as favorable to the defendant as he had a right to expect; nor do we think it was neсessary for the court to charge specially as to the rule in regard to circumstantial evidence. There was no chain of circumstances in this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case which required the court to tеll the jury that each circumstance which constituted a link in the chain should be established to their full satisfaction. A chain is no stronger than its weakest link, it is true; but there is no series of facts in this case neсessary to be considered by the jury in order to convict *597 the defendant. The case was without complication and depended mainly upon the credit which the jury should- attach to the testimony of John Cole, the witness for the State, when considered in connection with the other evidence in the case. In S. v. Adams, 138 N. C., 688, we said: “No set of words is required by the law in regard to the force of circumstantial evidence. All that the law requires is that the jury shall be clearly instructed that unless after due consideration of all the evidence they are ‘fully satisfied’ or ‘entirely convinced’ or ‘satisfied beyond a reasonable doubt’ of the guilt of the defendant, it is their duty to acquit, and every attempt on the part of the courts to lay down a ‘formula’ for the instruction of the jury, by which to ‘gauge’ the degrees of conviction has resulted in no good.” These are the words used by Chief Justice Pearson in S. v. Parker, 61 N. C., 473, which we quoted and approved in the Adams case, as “they present in a clear and forceful manner ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the true principle of law upon the subject.”

There are sоme questions of evidence in the case, which we will briefly consider. The witness John Cole was permitted to refer to the contents of a letter, written by him to the sheriff, without the letter being produced and offered in evidence. He stated that, in the letter, he said to the sheriff that he had not stolen the mule. This did not tend to prove anything prejudicial to the defendant, and, besides, it was collatеral to the issue, and the contents of the letter could be shown without producing it. S. v. Ferguson, 107 N. C., 846; S. v. Sharp, 125 N. C., 631. "What Joe Cobb, a witness for the State, testified as to his conversation with John Cole, in regard to the arrangements he had made with the defendant, was corroborative of Cole’s evidence, and was, therefore, competent, Cole having been previously examined as a witness. S. v. Freeman, 100 N. C., 434; S. v. Maultsby, 130 N. C., 664. In Freeman's case, supra, it is said: “This is in consonanсe with adjudications in this State, which, whenever the witness is impeached and in whatever manner, even if it is done in the cross-examination, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍permits his credit to be sustained by proof of declarations made to others similar to the testimony given in and assailed, and these may be proved by the witness who made them.”

*598 It seems that tbe solicitor, in the course of the trial, had stated that he- would not ask thе jury to convict upon the sole and unsupported testimony of John Cole, who was an accomplice, and the judge repeated the remark of the solicitor in his charge to the jury, and the defendant entered exception thereto. We do not see how this was prejudicial to the defendant, even if it was error, for the jury could xoroperly convict upon the unsupрorted testimony of John Cole, if they found that he had told the truth in regard to the matter, even though he was an accomplice of the defendant. The judge virtually told the jury, by referring to this remark of the sоlicitor, that they should not convict the defendant unless they believed that John Cole’s story of what had occurred between him and the defendant, and as to what he saw at the bridge, had been supрorted by other evidence.

The other exceptions are without merit, and, besides, the rulings of the court were harmless, if erroneous. We have carefully reviewed the entire record, including the great volume of evidence sent up to this Court, by question and answer taken down by and recorded by a stenographer, and have failed to find any error committed by the court in the trial of the cause.

No error.