State v. . Weinstein
31 S.E.2d 920
N.C.
1944
Check Treatment
*648 DeviN, J.

At the outset the defendant assails the correctness of the judgment below on the ground that the evidence was insufficient to warrant submission of the case to the jury. He assigns as error the denial of his motion for judgment as of nonsuit. This motion was based in part upon the view that while the bill of indictment charged the larceny and receiving of waste paper, the property of thе Junior Chamber of Commerce, the evidence did not show that the title to the property had ever passed to that body.

It is true the allegation of ownership of the property described in a bill of indictment for larceny must be proven substantially as laid, S. v. Harris, 195 N. C., 306, 141 S. E., 883, else a fatal variance would result, S. v. Harbert, 185 N. C., 760, 118 S. E., 6, and this would be available on a motion to nonsuit, S. v. Nunley, ante, 96, but we think there is evidence to support the allegation of ownership. 'While the paper was contributed by numerоus citizens of Raleigh, it was donated by them to the Junior Chamber of Commerce in response to its request, to be used for its charitable purposes. Pursuant to this intent and purpose the paper was placed on the street off the premises of the donors in convenient location and form for collection by the trucks of the Junior Chamber of Commerce. In ordеr to pass the title there must have been both the intention to give and a delivery. Newman v. Bost, 122 N. C., 524, 29 S. E., 848; Bynum v. Bank, 219 N. C., 109, 12 S. E. (2d), 898; Bynum v. Bank, 221 N. C., 101, 19 S. E. (2d), 121. While the delivery may be actual or constructive, the donor’s surrender ‍​​‌​‌​‌​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌​​​​‌‌​​‌​‌‌‍of the property must be complete and his control relinquished. Parker v. Mott, 181 N. C., 435, 107 S. E., 500; Taylor v. Coburn, 202 N. C., 324, 162 S. E., 748; 24 Am. Jur., 742. Applying these principles, we think the evidence here, in the light most favorable for the State, tends to show relinquishment of possession and control of thе property by the .donors, with intent to give, by placing it off the donors’ premises on the street where designated by the donee, and that this was 'for the purpose of completing the gift and dеlivering possession of the property to the Junior Chamber of Commerce. Under these circumstances we think this would evidence a divesting of the title to the property on the part of the donors, and vesting title thereto in the donee. Nor would acceptance by the donee have to be manifested by immediate possession if a later time therefor hаd been fixed and agreed upon by the parties. 24 Am. Jur., 735.

Was there evidence sufficient to sustain, in all other essential respects, the charge of larceny of the property desсribed, or of receiving it knowing it to have been stolen? The rule is that the motion for judgment of nonsuit must be denied if there be any substantial evidence— more than a scintilla- — to prove the allеgations of the bill. S. v. Shermer, *649 216 N. C., 719, 6 S. E. (2d), 529. The testimony does not show that the defendant personally participated in the taking or removal of any of the property alleged. S. v. King, 222 N. C., 239, 22 S. E. (2d), 445. Whether evidence thаt his trucks operated by his employees were used in taking and carrying away the property, together with evidence of his recent possession of the stolen goods as an incriminating circumstance, should be held sufficient to warrant submission to the jury of the count of larceny, on the theory that he advised and procured the taking with felonious intent, need not be decidеd, as there is sufficient evidence, we think, to support the charge that the goods described ‍​​‌​‌​‌​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌​​​​‌‌​​‌​‌‌‍were feloniously taken and carried away, and that the defendant received them with knоwledge at the time that they had been so stolen. If so, this would be sufficient to prevent a nonsuit. There were two counts in the bill in the usual form for larceny and receiving, and the jury found the defendаnt guilty on both counts. A single judgment was rendered. As there was evidence to support the judgment on the second count, the motion to nonsuit was properly denied. S. v. Cannon, 218 N. C., 466, 11 S. E. (2d), 301.

Upon this point there was еvidence that before the goods were received into his possession repeated notice was given the defendant that this paper was the property of the Junior Chаmber of Commerce, and that it had been feloniously carried away by those operating his trucks. With this knowledge he received and appropriated the goods, took them into his possession, and was engaged in packing some of them for shipment when discovered. His statements before and at the time, as well as his effort to misdirect the seeking officers, would tend to support the charge of guilty knowledge.

Defendant assigns error in the ruling of the trial judge in admitting in evidence testimony as to the amount of paper put out on the street on Sunday for delivеry to the Junior Chamber of Commerce and the amount found missing next morning. Objection to this testimony cannot be sustained. In order to show that the offense charged had been committed and as a step toward connecting the defendant therewith, it was competent for the State to show that a large amount of waste paper had been donated to the Junior Chamber of Commerce by citizens of Raleigh and placed on the street pursuant to the donee’s request, and that a part of this paper was missing the next morning. The State was propеrly permitted to show this without attempting to account for all the missing property or showing it in defendant’s possession. The admissibility of circumstantial evidence, otherwise competent, tо prove the commission of the offense and the guilty participation therein of the accused may not be successfully questioned. 32 Am. Jur., 1035. Likewise, testimony as to the size, weight and conditiоn of the bundles of *650 paper found in defendant’s possession was competent also on tbe question of value. It is generally beld that evidence as to ‍​​‌​‌​‌​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌​​​​‌‌​​‌​‌‌‍size, weight, quantity and value from experienced witnesses who base their opinions upon personal observation is admissible. 20 Am. Jur., 679. It was necessary for the State to show the value of the property taken or rеceived to he more than $50 in order to establish the commission of a felony under the statute as charged in the bill of indictment, Gr. S., 14-72, and it was competent for the State to show any circumstаnce which would throw light on the subject of inquiry.

The defendant noted exception to the following portions of the judge’s charge to the jury: “There is a principle of law recognized in this jurisdiction that where property has been stolen, that is, where it is admittedly stolen or shown beyond a reasonable doubt to have been stolen, and some time thereafter it is found in the possession of one, that one is presumed to be the one who stole it and the more .recent the possession from the time of the stealing, the stronger is the presumption against him.” It was сontended that the language used in this instruction was prejudicial to the defendant in that it was susceptible of being understood as imposing a burden on the defendant not warranted by the evidenсe. It was urged that the ruling in S. v. Holbrook, 223 N. C., 622, and 8. v. Baker, 213 N. C., 524, 196 S. E., 829, should be applied here, rather than that set out in S. v. Williams, 219 N. C., 365, 13 S. E. (2d), 617; S. v. Best, 202 N. C., 9, 161 S. E., 535; and S. v. Anderson, 162 N. O., 571, 77 S. E., 238.

"While there is apparently a difference in the decided cases as to the .application of the doctrine of recent possession in larceny, the distinction lies in the nature of the evidence upon which the instructions were given rather than in the principle involved. The applicability of the doctrine of the inference of guilt derived from the recent possession of stolen goods depends upon the circumstance and character of the possession. “It applies only when the possession is of a kind which manifests that the stolen goods came to the possessor by his own act or with his undoubted concurrence” (S. v. Smith, 24 N. C., 406), and so recently and under such circumstances as to give reasonable assurance that such ‍​​‌​‌​‌​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌​​​​‌‌​​‌​‌‌‍possession could not have been obtained unless the holder was himself the thief. S. v. Baker, 213 N. C., 524, 196 S. E., 829; S. v. Ford, 175 N. C., 797, 95 S. E., 154; S. v. Graves, 72 N. C., 482. If the circumstances are such as to exclude the intervening agеncy of others between the theft and the recent possession of stolen goods, then such recent possession may afford presumptive evidence that the person in pоssession is the thief. S. v. Patterson, 78 N. C., 470; S. v. Lippard, 183 N. C., 786, 111 S. E., 722; S. v. McFalls, 221 N. C., 22, 18 S. E. (2d), 700. The presumption, however, is one of fact only an<J is to be considered *651 by the jury merely as an evidential fact along with other evidence in determining the defendant’s guilt. S. v. Baker, supra.

It will be noted that in this case there was evidence that the property was taken from the streets, and that the defendant operated trucks thereon for the collection of such property. This, with evidence that a few hours after the property was missed this identical property was found in defendant’s possession, would seem to render applicable the principle of law contained in the instruction complained of. It further аppears that the trial judge, after using the quoted words to which exception was noted, referred to the evidence of the recent possession of the waste paper by the defendant in this case as a circumstance which the jury had a right to consider.

While we think the possibility of misinterpretation would be avoided by treating recent possession of stolеn goods merely as an evidential ‍​​‌​‌​‌​‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌​​​​‌‌​​‌​‌‌‍fact, under the evidence in this ease we find no prejudicial error has been shown in the court’s instruction to .the jury on this point.

There was no exceрtion to the court’s charge on the second count in the bill, for receiving stolen goods knowing them to have been stolen, nor on the question of the value of the property.

In the trial we discover no error which would require setting aside the verdict and judgment.

No error.