State v. . Yow

Devin, J. Tbe failure of tbe jury to find tbe defendant guilty of larceny amounted to an acquittal on tbat charge, and tbe verdict “guilty of receiving stolen goods” was insufficient to support tbe judgment on tbe second count in tbe bill, entitling tbe defendant to a venire de novo on tbat count. S. v. Shew, 194 N. C., 690, 140 S. E., 621; S. v. Cannon, 218 N. C., 466, 11 S. E. (2d), 301. However, tbe defendant insists tbe evidence offered was insufficient to show tbat with felonious intent be received tbe stolen article knowing at tbe time tbat it was stolen, and tbat having been acquitted of the charge of larceny be was entitled to nonsuit on tbe second count. Conceding tbat there was evidence tbat tbe pistol was stolen, and that tbe defendant was made aware of tbat fact shortly after tbe theft, tbe only remaining question for decision was whether there was sufficient evidence to go to tbe jury tbat tbe defendant with felonious intent received tbe pistol with knowledge at tbe time tbat it bad been stolen. S. v. Morrison, 207 N. C., 804, 178 S. E., 562; S. v. Oxendine, 223 N. C., 659, 27 S. E. (2d), 814. On this point tbe only evidence is tbat two months after tbe theft the pistol was found in a dresser drawer in tbe bedroom of defendant’s wife (presumably tbe room also ordinárily occupied by tbe defendant when at borne). Tbe defendant was not present. There was no suggestion as to bow tbe pistol came to be there. Tbe defendant was acquitted of tbe larceny. Presumably tbe pistol, if stolen, was stolen by someone else, and to make defendant guilty on tbe second count be must have received tbe stolen pistol with felonious intent. Evidence merely.tbat it was found in a drawer in defendant’s wife’s bedroom would seem to be lacking in sufficient probative value to war *587 rant conviction on the charge of receiving stolen goods knowing them to have been stolen. The evidence fails to show that the defendant received the stolen article, or, if so, to negative the reasonable inference that it was for the purpose of returning it, as he had promised to do. The inference arising from the recent possession of stolen property has no application to the charge of receiving. S. v. Best, 202 N. C., 9, 161 S. E., 535; S. v. Lowe, 204 N. C., 572, 169 S. E., 180. Receiving stolen goods knowing them to have been stolen is a statutory offense. G. S., 14-71. The criminality of the action denounced by the statute consists in receiving with guilty knowledge and felonious intent goods which previously had been stolen. Sufficient evidence of all the essential elements of the offense must be made to appear in order to sustain a conviction. S. v. Minton, 61 N. C., 196; S. v. Adams, 133 N. C., 667, 45 S. E., 553; S. v. Oxendine, supra; S. v. Fowler, 117 W. Va., 761, 188 S. E., 137; 68 A. L. R., 187; 45 A. J., 386. In view of defendant’s acquittal on the charge of larceny and the insufficiency of the evidence on the second count, we think the defendant is entitled to the allowance of his motion for judgment of nonsuit, and that the judgment must be Reversed. Barnhill, J., dissents.