{
  "id": 8524850,
  "name": "STATE OF NORTH CAROLINA v. ALFRED W. McNEILL",
  "name_abbreviation": "State v. McNeill",
  "decision_date": "1981-11-17",
  "docket_number": "No. 8112SC361",
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  "casebody": {
    "judges": [
      "Judges Clark and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ALFRED W. McNEILL"
    ],
    "opinions": [
      {
        "text": "MORRIS, Chief Judge.\nThe evidence for the state tended to show that the residence of the prosecuting witness had been entered and certain items stolen therefrom. Among the items stolen was a Sears black and white television, serial No. 74025742, and an Emerson heater. Entrance to the residence was gained by the thief\u2019s having split the front door \u201cdown the middle from top to bottom.\u201d On the same day defendant pawned a Sears television set, serial No. 74025742 to one pawn shop, and sold an Emerson heater to another pawn shop, both pawn shops being on the same street in Fayetteville.\nThe state relied on the doctrine of possession of recently stolen property. It is to the application of this principle that defendant\u2019s two assignments of error are directed. He contends that the application of the doctrine is unconstitutional and that the court committed reversible error in denying his tendered request for instructions to the jury that the state must prove beyond a reasonable doubt that the property possessed by defendant was \u201cthe identical property stolen.\u201d We reject both arguments and find no error in defendant\u2019s trial.\nWith respect to the first contention, defendant\u2019s position is that to allow the state to rely on a \u201cpresumption\u201d such as in this case lessens the state\u2019s burden of proof and thereby results in a violation of the due process clause. This argument was rejected in State v. DeGina, 42 N.C. App. 156, 256 S.E. 2d 275 (1979), following Barnes v. U.S., 412 U.S. 837, 37 L.Ed. 2d 380, 93 S.Ct. 2357 (1973), and State v. Fair, 291 N.C. 171, 229 S.E. 2d 189 (1976). See generally State v. Maines, 301 N.C. 669, 273 S.E. 2d 289 (1981). We adhere to these precedents and overrule this assignment of error.\nDefendant argues that the court erred in not allowing his request for instructions; specifically \u201c[b]efore the defendant\u2019s guilt may be inferred from his possession of certain property, the jury must first find from the evidence, and beyond a reasonable doubt that the property in the defendant\u2019s possession was the identical property stolen.\u201d\nIt is completely obvious that the instructions given could leave no juror in doubt that the state must prove that the articles in defendant\u2019s possession soon after the theft must be those articles stolen.\nAfter instructing the jury that the inference arising from the possession of recently stolen property is one of fact and not of law and is strong or weak as the length of time elapsing between the stealing and the possession is short or long; that the inference is an inference to be considered by the jury merely as an eviden-tiary fact in determining whether the state has carried its burden of satisfying the jury beyond a reasonable doubt of defendant\u2019s guilt, the court charged the jury as follows:\nThe duty to offer such explanation of his possession as is sufficient to raise 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 is not placed on the defendant however recent the possession by him of the stolen goods may have been. The burden of establishing the defendant\u2019s guilt beyond a reasonable doubt remains upon the State at all stages of the trial. When the State proves to the jury beyond a reasonable doubt that there was a larceny, after the State has proved beyond a reasonable doubt from circumstantial evidence that there has been a felonious breaking or entering of the apartment of William J. Collins on said occasion with the intent to commit the crime of larceny and there has been a discovery of these stolen articles in the defendant\u2019s possession soon after the theft, this raises an inference of facts from which the jury may infer that the defendant was guilty of breaking or entering of the apartment of William J. Collins.\nFurther the court, in pointing out the three things which must be proved by the state beyond a reasonable doubt before the doctrine can apply, said:\nSecond, that the defendant has possession of these or this same black and white TV and this same Emerson electric heater. (Emphasis supplied.)\nThis instruction comes from North Carolina Pattern Instructions Criminal 104.40. Additionally, the Supreme Court, in State v. Jackson, 274 N.C. 594, 597, 164 S.E. 2d 369 (1968), said:\nHowever, before the defendant\u2019s guilt on either count may be inferred from the defendant\u2019s unexplained possession of the money, the jury should have been required to find from the evidence and beyond a reasonable doubt that the money in the defendant\u2019s possession was the identical money taken from the Steele home.\nThe Court awarded the defendant a new trial because \u201c[t]he Court\u2019s charge failed to require the jury to find from the evidence and beyond a reasonable doubt that the bills found on the defendant were the same bills stolen from the Steele home.\u201d (Emphasis supplied.) See also State v. Frazier, 9 N.C. App. 44, 175 S.E. 2d 377 (1970); Webster\u2019s Third New International Dictionary (Unabridged). Merriam Webster (1968) defines \u201cidentical\u201d as \u201cbeing the same.\u201d We fail to perceive how defendant could possibly have been prejudiced by the court\u2019s refusal to adopt verbatim the instruction submitted by defendant. This assignment of error is overruled.\nIn the defendant\u2019s trial we find\nNo error.\nJudges Clark and Wells concur.",
        "type": "majority",
        "author": "MORRIS, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Ben G. Irons, II, for the state.",
      "Assistant Public Defender Jodie Ellis for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALFRED W. McNEILL\nNo. 8112SC361\n(Filed 17 November 1981)\n1. Burglary and Unlawful Breakings \u00a7 6.5; Larceny \u00a7 7.4\u2014 application of doctrine of possession of recently stolen property \u2014 no violation of due process\nApplication of the doctrine of possession of recently stolen property in a prosecution for breaking and entering and larceny did not lessen the State\u2019s burden of proof and thereby result in a violation of due process.\n2. Burglary and Unlawful Breakings \u00a7 6.5; Larceny \u00a7 8.4\u2014 possession of recently stolen property \u2014 failure to give requested instructions\nThe trial court did not err in refusing to give defendant\u2019s requested instructions that, in order to find defendant guilty of breaking and entering and larceny pursuant to the doctrine of possession of recently stolen property, the State must prove beyond a reasonable doubt that the property possessed by defendant was \u201cthe identical property stolen\u201d where the instructions given by the court sufficiently apprised the jurors that the State must prove that the articles in defendant\u2019s possession soon after the theft were those articles stolen.\nAPPEAL by defendant from Hob good, Judge. Judgment entered 14 November 1980, Superior Court, CUMBERLAND County. Heard in the Court of Appeals 23 September 1981.\nDefendant was charged with and convicted of breaking or entering and larceny and appeals from judgment entered upon the guilty verdicts.\nAttorney General Edmisten, by Assistant Attorney General Ben G. Irons, II, for the state.\nAssistant Public Defender Jodie Ellis for defendant appellant."
  },
  "file_name": "0675-01",
  "first_page_order": 703,
  "last_page_order": 706
}