State v. . Oxendine
27 S.E.2d 814
N.C.
1943
Check Treatment
Stacy, O. J.

The question for decision is whether the eases as made can survive the demurrers. Specifically, the question posed is whether the evidence warrants the finding that each of the defendants, with felonious intent, received the respective articles of merchandise, the property of Leo Smith, knowing at the time that the same had been feloniously stolen or taken in violation of C. S., 4250. S. v. Miller, 212 N. C., 361, 193 S. E., 388; S. v. Dail, 191 N. C., 231, 131 S. E., 573; S. v. Caveness, 78 N. C., 484. We are disposed to think the element of scienter is wanting. S. v. Spaulding, 211 N. C., 63, 188 S. E., 647. Apparently the circumstances are not such as to justify an inference of guilty knowledge on the part of the defendants. S. v. Slathos, 208 N. C., 456, 181 S. E., 273; S. v. Wilson, 176 N. C., 751, 97 S. E., 496.

The one fact in Nunn Oxendine’s case urged as a circumstance to support an inference of scienter, is the unusual hour of the night at which the property was brought to his house. S. v. Gordon, 105 Minn., 217, 117 N. W., 483, 15 Ann. Cas., 897. In the cases of the other two defendants, the additional fact of their having first denied to the officers that they had purchased any of the merchandise, is also urged as indicating guilty knowledge on their part. Birdsong v. State, 120 Ga., 850, 48 S. E., 329. These are the only inculpating circumstances on the record. They may be sufficient to excite suspicion, somewhat strong perhaps, but they apparently leave too much to surmise or assumption to carry the cases to the jury. S. v. Epps, 214 N. C., 577, 200 S. E., 20; S. v. Jones, 215 N. C., 660, 2 S. E. (2d), 867. The evidence must do more than raise a suspicion or conjecture in regard to the essential facts of the case. S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. Montague, 195 N. C., 20, 141 S. E., 285.

The test is whether the defendants knew, or must have known, the goods were stolen, not whether a reasonably prudent person would have suspected strangers calling at 2 or 3 o’clock in the morning. S. v. Stathos, supra; S. v. Spaulding, supra; 17 R. C. L., 86. Traveling or visiting at early morning hours is not an unusual occurrence among some portions of our population. Note, 22 L. R. A. (N. S.), 833. Moreover, the story told by the thieves is to be considered in connection with the unusuality of the hour of their call. S. v. Miller, supra; 45 Am. Jur., 389. Then, too, it is to be remembered the testimony of the State’s witness, James Williams, negatives scienter or guilty knowledge on the part of the defendants. It also appears that full value was paid for the goods in each instance.

*662 The aid which the defendants sought to give the thieves (unknown as such at the time) was not in furtherance of the larceny as was the case in S. v. Bushing, 69 N. C., 29, but to enable them to dispose of their merchandise before going into the Army a few days hence. Such was the situation as it appeared to the defendants. “The law does not condemn where the heart is free from guilt.” S. v. Morrison, 207 N. C., 804, 178 S. E., 562.

True it is, the defendants, Archie Ransom and Hilton Oxendine, exhibited some uneasiness when questioned by the officers after the event, but not so with Nunn Oxendine, who freely told of his purchase. Open and frank responses would have served them better, as they doubtless now understand, S. v. Grass, ante, 31, but this one circumstance seems hardly sufficient to sustain a conviction as to the equivocating defendants, especially as their equivocation may be ascribed to other causes,

' e.g., the purchase of the sugar without ration coupons, or their natural fear of the officers. S. v. Morrison, supra; 45 Am. Jur., 389; S. v. Massey, 86 N. C., 658.

It is conceded that no presumption arises here and no guilty inference is to be drawn from the mere fact of the recent possession of the stolen property by the defendants. S. v. Best, 202 N. C., 9, 161 S. E., 535; S. v. Lowe, 204 N. C., 572, 169 S. E., 180.

The result is that the motions to dismiss or for judgments of nonsuit will be sustained. C. S., 4643.

Reversed.