{
  "id": 8554176,
  "name": "STATE OF NORTH CAROLINA v. RALPH JACKSON",
  "name_abbreviation": "State v. Jackson",
  "decision_date": "1969-04-30",
  "docket_number": "No. 6926SC135",
  "first_page": "459",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T18:50:38.610889+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and BeocK, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RALPH JACKSON"
    ],
    "opinions": [
      {
        "text": "Morris, J.\nThe court\u2019s charge contained the following:\n\u201cIf and when it is established that the store has been broken into and entered, and that merchandise has been stolen therefrom, the recent possession of such stolen merchandise raises presumptions of fact that the possessor is guilty of the larceny and of the breaking and entering.\u201d\nThis was the extent of the charge by the trial court on the doctrine of \u201crecent possession\u201d and this portion of the charge, we think, constituted error. In State v. Holbrook, 223 N.C. 622, 27 S.E. 2d 725, Stacy, C.J., in a thorough discussion of the doctrine of recent possession, makes it clear that the doctrine does not place upon the defendant the burden to \u201craise in the minds of the jury a reasonable doubt that he stole the property, or the burden of establishing a reasonable doubt as to his guilt.\u201d The doctrine \u201cis to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant\u2019s guilt.\u201d State v. Baker, 213 N.C. 524, 196 S.E. 829. We think the instruction quoted above, this being the entire instruction given on the doctrine of \u201crecent possession\u201d, did not sufficiently explain to the jury that possession of recently stolen property was only to be considered along with the other evidence in the case in determining whether the State had satisfied the jury beyond a reasonable doubt of the defendant\u2019s guilt. An instruction that is open to interpretation that the burden is upon the defendant to rebut the presumption of his guilt is erroneous. State v. Holbrook, supra; State v. Hayes, 273 N.C. 712, 161 S.E. 2d 185. Further, the trial court, in its charge, failed to require the jury to find from the evidence and beyond a reasonable doubt that the television sets found in defendant\u2019s possession were the same television sets that were taken from the Johnston Furniture Company. \u201cThe Judge committed error in failing to charge the presumption or inference does not apply until the identity of the property is established.\u201d State v. Jackson, 274 N.C. 594, 164 S.E. 2d 369.\nIn charging the jury on felonious intent, the court stated that if the breaking and entering \u201cwas done without the intent to commit the felony of larceny or other infamous crime, then you would so indicate by your verdict; that is, he would be guilty of a misdemeanor.\u201d (Emphasis added.) The indictment under which the defendant was tried stated that he did break or enter the Johnston Furniture Company with the intent to steal, etc. \u201cFelonious intent is an essential element of the crime defined in C.S., 4235 (G.S. 14-54). It must be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the 'intent to steal.\u2019 \u201d State v. Friddle, 223 N.C. 258, 25 S.E. 2d 751. \u201cThe indictment having identified the intent necessary, the State was held to the proof of that intent.\u201d State v. Thorpe, 274 N.C. 457, 164 S.E. 2d 171. On the basis of these authorities, the underscored portion of the charge quoted above would appear to be erroneous.\nFor errors committed in the charge to the jury there must be a new trial. Other errors assigned, such as an apparent discrepancy between the indictment description of the stolen property and the evidence, are not discussed since they are not likely to re-occur.\nNew trial.\nCampbell and BeocK, JJ., concur.",
        "type": "majority",
        "author": "Morris, J."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Deputy Attorney General Jean A. Benoy for the State.",
      "Peter H. Gerns for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RALPH JACKSON\nNo. 6926SC135\n(Filed 30 April 1969)\n1. Larceny \u00a7 5\u2014 presumption arising from recent possession of stolen property \u2014 evidential fact\nThe presumption arising from the recent possession of stolen property is to be considered by the jury merely as an evidential fact, along with the other evidence in the ease, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant\u2019s guilt.\n2. Larceny \u00a7 8\u2014 instruction on recent possession doctrine\nIn prosecutions for larceny and breaking and entering, an instruction which did not sufficiently explain to the jury that the presumption arising from possession of recently stolen property was merely to be considered as an evidential fact, along with the other evidence in the case, in determining whether the State had satisfied the jury beyond a reasonable doubt of defendant\u2019s guilt, held error.\n3. Criminal Law \u00a7 112\u2014 instruction on burden of proof\nAn instruction that is open to interpretation that the burden is upon the defendant to rebut the presumption of his guilt is erroneous.\n4. Larceny \u00a7 8; Burglary and Unlawful Breakings \u00a7 6\u2014 instruction on identity of article stolen\nIn prosecutions for larceny of television sets and breaking and entering, instruction which failed to require the jury to find from the evidence and beyond a reasonable doubt that the television sets found in defendant\u2019s possession were the same television sets taken from the store that was broken and entered, held error.\n5. Burglary and Unlawful Breakings \u00a7 7\u2014 instruction as to possible verdicts \u2014 felonious intent\nIn a prosecution upon indictment charging that defendant did break and enter a named store with the intent to steal, an instruction that defendant would be guilty of a misdemeanor if the breaking and entering was done without the intent to commit felonious larceny \u201cor other infamous crime,\u201d held error, since the State is restricted to the proof of the intent identified in the indictment.\n6. Burglary and Unlawful Breakings \u00a7 2\u2014 felonious breaking and entering \u2014 the intent\nFelonious intent is an essential element of breaking and entering with intent to commit a felony, G.S. 14-54, and it must be alleged and proved; the felonious intent proven must be the felonious intent alleged.\nAppeal by defendant from Falls, J., 21 October 1968 Criminal Session, Superior Court of Mecklenburg.\nThe defendant was indicted for breaking and entering with the intent to steal, for the larceny of three television sets of the value of more than $200, and of knowingly receiving stolen goods. To each of the charges the defendant entered a plea of not guilty.\nThe State\u2019s evidence tended to show that on the morning of 14 September 1968 at approximately 5 o\u2019clock, Officer G. W. Shore of the Charlotte Police Department was driving near the Johnston Furniture Store which is located at 117 North Tryon Street in Charlotte when he heard an alarm. He started moving toward the sound, and as he did, he saw the defendant coming out of the alleyway which leads to the rear entrance of the Johnston Furniture Company. When Shore first saw the defendant he was carrying two television sets and was approximately 125 feet from the furniture store. After a short chase the defendant and one Walter Grier were apprehended by the police. An examination of the rear entrance to the furniture store revealed that the glass had been completely broken out of one door.\nWillard H. Smith, manager of Johnston Furniture Store, testified that he arrived at the furniture store at approximately 5 a.m. on the morning in question. Before he left the store the night before, all the doors were checked and were found to be locked. When Smith entered the store the next morning, he discovered that three television sets were missing. State\u2019s exhibits Nos. 2, 3 and 4 were identified as being the television sets that were taken from the store. Officer Shore testified that exhibits Nos. 2 and 3 were the same television sets he saw the defendant carrying on the morning in question.\nThe jury returned verdicts of guilty of breaking and entering with the intent to commit a felony, and guilty of larceny. From consecutive sentences of imprisonment of 10 and 9 to 10 years, respectively, defendant appealed.\nAttorney General Robert Morgan by Deputy Attorney General Jean A. Benoy for the State.\nPeter H. Gerns for defendant appellant."
  },
  "file_name": "0459-01",
  "first_page_order": 479,
  "last_page_order": 482
}