State v. ChambersAnnotate this Case
79 S.E.2d 262 (1953)
239 N.C. 114
STATE v. CHAMBERS.
Supreme Court of North Carolina.
December 16, 1953.
*263 Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
John T. Page, Jr., Rockingham, for defendant appellant.
DEVIN, Chief Justice.
The defendant noted exception to and assigns as error the following instructions given to the jury by the court:
"Then on the count of larceny, gentlemen, there is this rule of law: Where a defendant is found in possession of property feloniously stolen and that possession is so recent from the time it was stolen that (he) could not have reasonably gotten the possession of that property without stealing it; if you find beyond a reasonable doubt that the defendant was in possession of the property and it had been feloniously stolen, then there is the presumption that the one in recent possession of the stolen property that that one did the stealing, and this presumption, gentlemen, is strong or weak depending upon the length of time that the property had been feloniously stolen, and the time it was found in the possession of the defendant. In other words, if the property was stolen last night feloniously, and found in the possession of the defendant today, that presumption would be stronger than it would if found in his possession two, three, or four weeks from the time it was stolen, and the further removed this possession is from the time it was stolen, the weaker this presumption becomes until it is only a mere circumstance to be considered by the jury."
The fact that stolen goods are found in the possession of a person, by his own act or concurrence, soon after the goods were stolen, permits the logical inference therefrom that he is the thief. This doctrine is imbedded in the law of evidence and has been frequently stated by this Court. While there is some difference in the decided cases as to the applicability of the doctrine and in the manner in which it is stated, the distinction lies rather in the nature of the evidence upon which it is grounded and the circumstance and character of the possession than in the expression of the principle involved. State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625; State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725; State v. McFalls, 221 N.C. 22, 18 S.E.2d 700; State v. Williams, 219 N.C. 365, 13 S.E.2d 617; State v. Baker, 213 N.C. 524, 196 S.E. 829; State v. Lippard, 183 N.C. 786, 111 S.E. 722; Stansbury, sees. 215, 242.
"If the circumstances are such as to exclude the intervening agency of others between the theft and the recent possession of stolen goods, then such recent possession may afford presumptive evidence that the person in possession is the thief. State v. Patterson, 78 N.C. 470; State v. Lippard, 183 N.C. 786, 111 S.E. 722; State v. McFalls, 221 N.C. 22, 18 S.E.2d 700. The presumption, however, is one of fact only and is to be considered by the jury merely as an evidential fact along with other evidence in determining the defendant's guilt." State v. Weinstein, supra [224 N.C. 645, 31 S.E.2d 924].
Referring to the distinction to be drawn between a presumption and an inference, we said in Re Will of Wall, 223 N.C. 591, 594, 27 S.E.2d 728, 730, "However, the term presumption as connotating a presumption of law is generally used as indicative of a mandatory deduction which the law directs to be made, in the sense of a rule of law laid down by the Court, while a presumption of fact used in the sense of an inference is a deduction from the evidence, having its origin in the well recognized relation between certain facts in evidence and the ultimate question to be proven."
*264 While the language in which the court stated the principle of recent possession may be subject to criticism when considered as the statement of a general rule applicable to all cases, in view of the evidence for the State that stolen tires were found in the possession of the defendant so soon after they were stolen, close to the place from which they were stolen, and that they were being sold after dark for a fraction of their value, we perceive no prejudicial effect from the language used of which the defendant can justly complain.
The evidence was sufficient to carry the case to the jury and the motion for judgment of nonsuit was properly denied.
We have examined the other exceptions to the judge's charge brought forward in defendant's case on appeal, but find nothing therein which would justify vacating the verdict and judgment of the Superior Court.