11 N.C. App. 686 | N.C. Ct. App. | 1971
Appellant contends that his arrest was illegal and that therefore his motion to suppress all evidence concerning the whiskey found in the automobile and concerning his statements made to the officers following his arrest should have been allowed. This contention is without merit. By statute, ABC law enforcement officers “have the same powers and authorities within their respective counties as other peace officers,” G.S. 18-45(15), and by G.S. 18-39.2 (a) such officers are given the power to arrest without warrant any person violating in their presence any of the provisions of G.S. Chapter 18. Appellant and his two companions were found by the officers to be in possession of more than one gallon of spiritous liquors, which in itself constituted prima facie evidence of violation of G.S. 18-32. Three cases of whiskey were observed by the officers in plain view in the back of the car, and the trial judge found as a fact, based on competent evidence after a voir dire examination, that the driver of the automobile voluntarily consented to a search of the car’s trunk. The record does not show that appellant made any objection to the evidence concerning the statement which he made to the officers that he had invested $100.00 in the whiskey, and he does not contend on this appeal that such statement was other than voluntarily made after he had fully been advised of his rights.
Finally, appellant assigns as error the following portion of the court’s instructions to the jury:
“The essential elements of the offense of receiving stolen goods are that the receiving of goods which have been feloniously stolen by some other person other than the accused with knowledge of the accused at the time of the receiving that the goods had been theretofore feloniously stolen, and the retention and possession of such goods was for felonious intent or with a dishonest motive. The existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which, if pursued, would disclose that conclusion.”
This assignment of error must be sustained. State v. Stathos, 208 N.C. 456, 181 S.E. 273. The test is not whether a reasonable man would or should have known or suspected that the goods were stolen. Rather, it is whether the defendant knew them to be stolen. This may be established either by direct proof of actual knowledge on the part of the defendant or by showing such circumstances that the jury could reasonably conclude that he must have known that the goods were stolen. See State v. Scott, 11 N.C. App. 642, decided 14 July 1971. For the error in the charge, defendant is entitled to a
New trial.
