#### STATE v. J. M. JENKINS.

(Filed 26 October, 1921.)

1. Criminal law — Newly Discovered Evidence — New Trial.

Tbe court will not grant a new trial after verdict for newly discovered evidence in a criminal case.

3. Criminal Daw — Recent Possession — Trials-—Evidence—Questions for Jury — Statutes.

Where the prosecutor’s goods have been stolen two days before, they are found in the defendant’s possession, with conflicting evidence upon the question of his having stolen them, the case can only be determined by the jury, and the defendant’s motion to dismiss, C. S., 4643, must be denied.

3. Criminal Daw — Instructions—Newly Discovered Evidence — Presumptions — Appeal and Error.

Where the defendant was being tried for larceny, and the question of “recent possession” had arisen, a mere technical error in the use of an expression as to the burden being upon the defendant of explaining his possession of the stolen articles will not be held reversible error when the court placed upon the State the burden of showing the defendant’s guilt beyond a reasonable doubt, and emphasized this part of the charge.

Appeau by defendant from Granmer, J., at tbe April Term, 1921, of N ORTHAMPTOW.

Tbe following is tbe bill of indictment: “Tbe jurors for tbe State upon tbeir oatb present, tbat J. M. Jenkins, late of tbe county of Northampton, on 5 March, 1921, with force and arms, in said county a lot of bacon meat of tbe value of $25, tbe goods and chattels of Gr. B. Warren then and there being found, then and there did feloniously steal, take and cany away, against tbe form of tbe statute in such case made and provided, and against tbe peace and dignity of tbe State.

*819“And tbe jurors aforesaid, upon their oath aforesaid, do further present, that on the day and year aforesaid, in said county, the said J; M. Jenkins a lot of bacon meat of the value of $25, the goods and chattels of Gr. B. Warren, then and there being found, feloniously did have and receive, well knowing the same to have been feloniously stolen, taken and carried away, contrary to the statute in such case made and provided, and against the peace and dignity of the State.”

The defendant upon conviction appealed to this Court.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Stanley Winborne, Lloyd J. Lawrence, and Brown Shepherd for defendant.

AuaMS, J.:

When the case was called for argument the defendant’s counsel filed a motion for a new trial upon the ground of newly discovered evidence. The motion must be denied. In numerous decisions this Court has held that a new trial will not be awarded in a criminal action for newly discovered evidence; and in S. v. Lilliston, 141 N. C., 857, the Chief Justice said: “So the point is settled, if the uniform practice of this Court and its repeated and uniform decisions to the same effect can settle anything.” S. v. Register, 133 N. C., 747; S. v. Turner, 143 N. C., 641; S. v. Ice Co., 166 N. C., 403.

The defendant in apt time made a motion to dismiss the action as in cáse of nonsuit. C. S., 4643. Eecapitulation of the testimony would serve no useful purpose, for it is plain that the controversy could be determined only by the verdict of the jury. At the trial there was evidence tending to show that on the night of 5 March, some one had broken into the prosecutor’s smokehouse and had stolen six hams and six shoulders, which, on 7 March, were found in possession of the defendant; also evidence of various other circumstances tending to connect the defendant with the offense charged. The defendant testified, and introduced several witnesses in his behalf. An issue of fact was thus joined between the State and the defendant, and the court properly submitted to the jury the question of the defendant’s guilt. In S. v. Carlson, 171 N. C., 823, it is said: “The motion to nonsuit requires that we should ascertain merely whether there is evidence to sustain the allegations in the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury.”

There is an exception to the charge. The record contains this statement: “The court further charged the jury that one found in posses-*820sioiL of stolen property recently after tbe commission of tbe tbeft is presumed to be tbe thief, but that tbis is a presumption of fact and not of law, and is weak or strong according to tbe facts and .circumstances of tbe case; that one found in possession of goods recently stolen was called upon to account for or explain bis possession by tbe evidence in tbe case and circumstances, but that tbis presumption arising from tbe possession of goods recently stolen could be rebutted and explained, and tbe burden was on tbe defendant to show to tbe satisfaction of tbe jury, if they found from tbe evidence beyond a reasonable doubt that tbe defendant was in tbe possession of tbe stolen meat, bow be came into its possession ; but be would not bave to show it beyond a reasonable doubt nor by a preponderance of evidence, but merely to tbe satisfaction of tbe jury; and if tbe evidence in tbe case in explanation of sucb possession, or any evidence or circumstances, raised a reasonable doubt in tbe minds of tbe jury as to tbe guilt of tbe defendant tbat tbey would return a verdict of not guilty; and tbe court further charged tbe jury tbat before tbey could consider any presumption arising from what it called recent possession tbe jury would bave to be satisfied from tbe evidence beyond a reasonable doubt tbat tbe meat found in tbe smokehouse of tbe defendant was tbe meat in question of tbe prosecuting witness, and tbat it bad been stolen.

“Tbe court further charged tbe jury tbat tbe defendant was presumed to be innocent, and tbat tbis presumption of innocence continued throughout tbe entire case, and tbat before tbey could convict tbe defendant tbey must.be satisfied from tbe evidence beyond a reasonable doubt of his guilt, and tbat if tbey were so satisfied tbey would find him guilty, but if tbey were not so satisfied tbey should return a verdict of not guilty.”

Tbe court instructed tbe jury in effect tbat tbe prosecution was begun with a presumption of innocence in favor of tbe defendant, and throughout tbe trial tbe burden remained with tbe State to satisfy tbe jury beyond a reasonable doubt tbat tbe defendant was guilty of tbe offense charged in tbe indictment. Tbat portion of tbe charge which imposed upon tbe defendant tbe burden of explaining possession of tbe stolen property to tbe satisfaction of tbe jury, considered alone, was technically incorrect. If, after tbey bad considered all tbe evidence, tbe jury entertained a reasonable doubt of bis guilt, tbe defendant was entitled to an acquittal; and such reasonable.doubt may bave existed although tbe jury may not bave been satisfied with tbe defendant’s particular explanation. However, by considering tbe charge in its entirety, “in tbe connected way in which it was given” (S. v. Exum, 138 N. C., 599), we observe tbat bis Honor, after saying tbat tbe burden was on tbe State to satisfy tbe jury beyond a reasonable doubt of tbe defendant’s guilt, gave tbe additional instruction tbat if tbe evidence in explanation of tbe defendant’s *821possession o£ tbe property, or any evidence or circumstances, raised a reasonable doubt as to tbe guilt of tbe defendant, tbe verdict should be not guilty. Upon consideration of tbe record we find no reversible error.

No error.