#### STATE v. DAVID RECORD, Sr.

(Filed 11 November, 1909.)

1. Criminal Actions — Husband and Wife — Wife’s Declarations — Evidence.

While the wife is not a competent witness against the husband in the trial of a criminal action, her declarations made in his presence under circumstances naturally calling for his reply if untrue, concerning which he remained silent, are competent when tending to show his guilt of the offense charged.

2. Criminal Actions — Larceny and Receiving — Evidence—Questions for Jury.

Evidence is sufficient to go to the jury upon the trial for larceny and receiving, which tends to show that the articles were found in the defendant’s home two weeks after the theft; that tracks led from the place of the theft to defendant’s home, he denied the theft, said that he knew that the articles afterwards identified were not there, appeared excited, and remained silent when his wife claimed them for. his own and in his hearing. Evidence that the goods were found in defendant’s home two weeks after the commission of the theft is of itself sufficient.

3. Appeal and Error — Instructions—Presumptions.

On appeal the presumption is that a charge given by the lower court to the jury was a correct one, in the abseuce of anything appearing to the contrary.

*696Appeal by defendant from Long, J., July Term, 1909, of RANDOLPH.

Tbe facts are stated in tbe opinion.

Attorney-General for tbe State.

W. P. Bynum, Jr., and Morehead & Sapp for defendant.

OlaeK, C. J.

Indictment for larceny and receiving. There was a general verdict of guilty. Tbe defendant’s bouse was searched, and some of tbe stolen clothing were found banging on tbe wall in tbe defendant’s bed-room. His wife said they were her husband’s clothes. Tbe witness said that “tbe defendant was twenty feet outside door, in bearing distance.” Tbe defendant’s exceptions cannot be sustained. Although tbe wife is not a competent witness against tbe husband in tbe trial of a criminal action, her declarations, made in bis presence, are competent.

In People v. McRea, 32 Cal., 100, the Court says: “Admissions and confessions may be implied from tbe acquiescence of tbe party in tbe statements of others, made in bis presence, when tbe circumstances are such as afford an opportunity to act or speak, and would naturally call for some action or reply from men similarly situated. And it makes no difference that, the statements which call for reply are made by a party who is incompetent to testify.” The Court cites Rex v. Barlett, 7 Car. and Pay., 832, and Rex v. Smithers, 6 Car. and Pay., 332, where the declarations of the wife, made in tbe presence of the husband, were held to be competent against him.

In Richardson v. State, 82 Wis., 172, it is said: “After the stabbing, from which deceased died, defendant’s wife said to persons that defendant was guilty of tbe crime. Defendant was present, and bad tbe same opportunity of bearing tbe statements as bad tbe other persons, and did not deny them. Held, that such statements were admissions of guilt, by acquiescence, and, as such, might be testified to by tbe persons present, though tbe wife was incompetent to testify in tbe case.”

“It makes no difference that tbe statements which call for a reply are made by a party who is not competent to testify, because such statements are admitted, not as of themselves evidence of tbe truth of tbe facts stated, but simply to show what it is that calls for a reply, and tbe conduct of the defendant himself, under tbe circumstances, as indicating an acquiescence in or refutation of tbe truth of tbe statement.” Abbott Criminal Trial Brief, sec. 284, p. 561.

In State v. Bowman, 80 N. C., 432, it is held: “Where declarations were offered as evidence on a trial for murder, as having *697been made in prisoner’s presence, and not contradicted by Mm, it was beld to be properly left to tbe jury to determine wbetber tbey were made in bis bearing, wbetber be understood tbem, wbat was bis conduct on tbe occasion, and to say wbat value should be attached to these circumstances as tending to prove the prisoner’s guilt.” See, also, State v. Burton, 94 N. C., 947.

Tbe other exception, for tbe refusal to charge that there was no evidence to go to tbe jury, is also without merit. Tbe stolen goods were found in tbe defendant’s possession two weeks after tbe theft. Tbe possession of stolen goods of itself is evidence. Here tbe tracks lead to tbe defendant’s bouse. He said be knew that tbe stolen gqods were not there, but, on a search, tbe defendant became greatly excited, and a part of tbe stolen goods were found in bis bed-room, and bis wife said, in bis bearing, that tbe clothes were her husband’s, and be did not deny it.

1 Wigmore Ev., sec. 153, lays down tbe general doctrine: “Wherever goods have been taken as a part of the' criminal act, tbe fact of tbe subsequent possession is some indication of tbe whole crime.”

In State v. Rights, 82 N. C., 675, this Court says: “The finding of stolen goods in tbe possession of tbe defendant a week or two after tbe theft raises a presumption of fact, not of law, against him, and is but a circumstance for tbe jury to consider, tbe rule being that tbe evidence is stronger or weaker, as tbe possession is more or less recent.”

Again, this Court says: “A prisoner found in possession of stolen goods so soon after tbe theft that be could not reasonably have gotten tbe possession, unless be bad stolen them himself, is presumed in law to be the thief.” State v. Graves, 72 N. C., 482.

“Possession of stolen goods immediately after tbe theft raises a violent presumption. But possession of stolen goods some time after tbe larceny raises a probable presumption of‘guilt, and tbe question must be submitted to the jury.” State v. Jennett, 88 N. C., 665; State v. McRea, 120 N. C., 608; State v. Hullen, 133 N. C., 656.

It is to be presumed that tbe court carefully instructed tbe jury as to tbe value of this sort of testimony. Indeed, tbe record says: “The court then instructed tbe jury, recapitulated tbe testimony and fully presented tbe contentions of both sides as to tbe fa'cts; and there were no other exceptions than tbe two above set out.”

No error.