
    STATE v. RICHARD NEVILLE.
    (Filed 15 November, 1911.)
    1. Appeal and Error — “Recent Possession” — Instructions—Omission to Charge.
    "When error on appeal is assigned upon the ground that the judge, on a trial for larceny, omitted to charge on the principles of law applicable to the defendant’s recent possession, it is necessary for the court to examine the evidence of the State and the defendant, when the question turns upon the nature and legal significance of it; and if it tends either to acquit or convict without the necessity of any special consideration of the probative force of recent possession or of evidence by circumstances, the omission to charge thereon is not error, and a full and explicit instruction upon the doctrine of reasonable doubt is sufficient in the absence of a prayer for more specific instructions.
    2. Evidence — Recent Possession.
    Upon a prosecution of an indictment for stealing a mule, it was admitted that the mule had been stolen, but the defense was relied on that the defendant was not guilty of the offense; and there was evidence on behalf of the State tending to show that under the guise of trading horses the defendant solicited and had his nephew, younger than he and presumably under his influence, to meet him at a certain place, from which the defendant and his nephew drove in a buggy to a point about three miles distant from the home of the prosecuting witness, from which the defendant went alone and soon returned, bringing the stolen mule, and sent his nephew away with it into another State, suggesting a change of name in ease of trouble, and giving him money and a pistol for the purpose of the journey; that eventually the nephew returned without the mule, stating that he had sold the animal on certain terms, and shared the proceeds Of the sale with the defendant, returning the money and the pistol the defendant had loaned him: Held, an instruction that under this evidence the jury should consider the recent possession of the defendant after the theft as only a circumstance in passing upon defendant’s guilt, was not error of which the defendant can complain. The presumption of defendant’s guilt from recent possession after the theft discussed by Walkee, J.
    3. Evidence, Circumstantial — Corroborative—Burden of Proof.
    When the question of defendant’s guilt or innocence of the charge of theft depends mainly on the credit the jury may give the testimony of a State’s witness, considered in connection with other evidence in corroboration and of a circumstantial character, and is without complication, it is not required that the judge should charge the jury that each circumstance which formed a link in the chain should be established to their full satisfaction.
    4. Evidence — Collateral Matters — Harmless Error.
    Testimony of a witness who had been convicted of receiving property which defendant was being tried for stealing, as to the contents of a letter he had written the sheriff, without producing the letter, to the effect that he had not stolen the mule, did not tend to prove anything harmful to the defendant, and being collateral to the issue, its admission was not error.
    5. Evidence — Conversations—Impeachment of Witness.
    After the examination of a State’s witness who had received property for stealing which the defendant was being tried, to the effect that he and the defendant had conspired together to that end, it is competent in corroboration for another State’s witness to testify to a conversation with the first witness in regard to the arrangements he and the defendant had made for the purpose of the theft.
    6. Instructions — Evidence — Accomplice — Evidence, Weight of— Harmless Error.
    It was no.t prejudicial to defendant for the judge, in his instructions to the jury, to refer to a statement made by the solicitor that he would' not ask a conviction for larceny of the defendant upon the unsupported testimony of his confederate, and, besides, a conviction could have been had upon the unsupported evidence of the accomplice, if the jury found that he had told the truth.
    Appeal from Daniels, J., at March Term, 1911, of Ala-MANCE.
    The defendant was indicted in the court below for the larceny of a mule, the property of Walter Sbepberd. The mule was last seen by its owner the fourth Sunday night in August, at about sundown, and it was not missed from the stable until the next day at about 4 o’clock a. m. He was found by Shepherd several weeks afterwards, near Martinsville, Va., with a saddle belonging to W. L. Spoon and a bridle belonging to the defendant, who lived with Spoon. After the mule was stolen, the defendant left home.
    John Cole, a witness for the State, who had been convicted of receiving the mule from the defendant, knowing it to have been stolen, testified: Tbat tbe defendant came to bim wben be was working for one Joe Cobb, and told bim tbat be wanted bim to assist in some borse trading. Cole at first said be could not go, but finally assented and it was agreed tbat be would meet tbe defendant on tbe following Sunday, wbicb be failed to do, but tbey did meet afterwards at Burlington on tbe nigbt tbe mule was stolen. Tbey rode in a buggy to a bridge over tbe creek, wbicb is two miles from tbe borne of W. L. Spoon, tbe brotber-in-law of tbe defendant and an uncle of Cole, and three miles from tbe bouse of tbe prosecutor, from whose stable tbe mule was taken. Cole being on unfriendly terms with Spoon, refused to go nearer tbe bouse than tbe bridge, and stopped there to wait for tbe defendant’s return, tbe defendant having told bim tbat be was going to get a mare and a colt, wbicb be bad in Spoon’s barn. Wben tbe defendant returned, be bad a mule, wbicb was identified as tbe one taken from tbe stable of Shepherd tbat nigbt. Tbe defendant told Cole to take tbe mule and trade or sell it, and be could have all over $50 tbat be could get for it. Tbe defendant, at tbe same time, gave him a pistol to carry with bim for protection, and $2.50 in money, and suggested tbat it might not be a bad idea for bim to change’bis name after be bad left with tbe mule, in order tbat be might not have any trouble. Cole took tbe mule to Virginia and sold bim, receiving $5 in cash and a note for $60. On bis return, be told tbe defendant what bad been done and gave bim tbe pistol which bad been borrowed, and $2.50 in money. A few days after Cole’s return from Virginia tbe defendant went to see bim and told him-that a warrant bad been issued for bim for stealing tbe mule, and advised him to “bit tbe bushes.” He asked Cole for tbe pistol, and it was given to him. There was evidence tending to show tbat tbe prosecutor traced tbe mule from bis borne to tbe bridge, by tracks which, were made both by tbe mule and tbe man who bad taken bim, wbicb tracks were made by tbe same number of shoes as those worn by tbe defendant. Tbe defendant introduced evidence tending to contradict tbe witness for tbe State and to show tbat be was not at tbe bridge with Cole on tbe nigbt tbe mule was stolen, nor at any other time, and each side introduced testimony in corroboration of its witnesses. It was admitted on tbe trial that the mule had been stolen from Shepherd, but the defendant denied that he was the thief, and offered evidence as to his good character.
    There was a verdict of guilty, and from the judgment thereon the defendant appealed.
    
      Attorney-General Biclcett and Assistant Attorney-General George L. Jones for the State.
    
    
      Parker & Parker and Long & Long for defendant.
    
   Walxer, J.,

after stating the case: We will have to deal, in this case, largely with the question as to the nature of the evidence and its legal significance, and it is, therefore, necessary to examine the testimony introduced by the State and the defendant, in order to ascertain if, in any view of it, the defendant was entitled, without asking for them, to special instructions upon the law relating to recent possession and circumstantial evidence. We do not think the case called for specific instructions of the kind defendant now contends should have been given. The evidence, when properly viewed, tended either to acquit or convict the defendant, without the necessity of any special consideration of the probative force of recent possession or of evidence by circumstances. The proof on the part of the State, briefly stated, was that the defendant and Cole, his .nephew, it must be understood, being younger than he was and naturally under his influence, had agreed, at. the defendant’s solicitation, to meet at a certain place for the purpose of trading horses, but really with the design of stealing the mule, as the gravely suspicious circumstances strongly indicate. They met in Burlington, according to agreement, or by accident, which makes no difference, and drove in a buggy to the bridge over the creek two miles from W. L. Spoon’s and three miles from the prosecutor’s home. There was evidently a conspiracy to steal the mule, and that would seem to have been the sole object of the. journey, the swapping of horses being a mere sham or pretense, as the jury apparently found it to be. The defendant left John Cole, the State’s witness, and went to W. L. Spoon’s home, where he got a saddle and bridle. He then went to the stable of the prosecutor and got the mule and rode him to the meeting place at tbe bridge, where be told Cole tbat be bad swapped tbe colt for tbe mule. He tben sent Cole on bis way to Virginia witb tbe mule, for tbe purpose of selling or trading bim, armed bim witb a pistol for protection and supplied bim witb money for tbe journey, and when be returned, after tbe sale of tbe mule, be received a part of tbe money and tbe pistol from Cole.

Upon tbis statement of tbe facts, we do not see bow tbe defendant could bave been benefited by a charge from tbe court as to tbe weight which they should give to tbe fact of recent possession. If Cole told tbe truth and tbe jury believed him, tbe possession of tbe mule by tbe defendant was about as recent as it was possible for it to be; but tbe judge, instead of instructing tbe jury tbat, owing to its nature, tbe law raised a presumption of guilt from such a possession, be told tbe jury tbat they should consider it as only a circumstance, in passing upon tbe defendant’s guilt, for be nowhere charged tbe jury tbat there was any presumption, either of law or fact, as to tbe defendant’s guilt. Tbis charge was much more favorable to tbe defendant than it would bave been if tbe court bad told tbe jury, in accordance witb tbe rule of law, tbat special weight should be given to tbe fact of recent possession. Tbe charge is sustained by tbe case of S. v. Hullen, 133 N. C., 656, in which tbe Court said: “Eecent possession of stolen property has always been considered as a circumstance tending to show tbe guilt of tbe possessor on bis trial upon an indictment for larceny. It is not necessary tbat we should here draw any nice distinction concerning tbe presumptions of guilt based on recent possession as being strong, probable, or weak, because tbe. court in its charge, to which there was no exception, instructed tbe jury tbat tbe recent possession of tbe defendant was only a circumstance to be weighed by them in passing upon bis guilt, and tbis charge is sustained, we believe, by all tbe authorities. S. v. Graves, 72 N. C., 482; S. v. Watts, 82 N. C., 657; S. v. Jennett, 88 N. C., 665; S. v. McRae, 120 N. C., 608.”

The rule in regard to recent possession of stolen goods was thus stated in S. v. Graves, 72 N. C., 482, by Chief Justice Pearson: “Tbe rule is tbis: ‘When goods are stolen, one found in possession so soon thereafter that be could not home reason^ ably got the possession unless be bad stolen them himself, the law presumes be was the thief.’ This is simply a deduction of common sense, and when the fact is so plain that there can be no mistake about it, our courts, following the practice in England, where the judge is allowed to express his opinion as to the weight of the evidence, have adopted it as a rule of law, which the judge is at liberty to act on, notwithstanding the statute which forbids a judge from intimating an opinion as to the weight of the evidence.” It is said in that case that this presumption of law is subject to some qualifications, depending upon the recency of the possession and the other facts and circumstances of the particular ease. We need not decide whether the presumption of guilt was strong or weak in this case, as a matter of law, as the judge simply gave to it the force and effect of a bare circumstance against the defendant, to be considered by them in passing upon the question of his guilt or innocence. In S. v. McRae, 120 N. C., 608, it was held that the presumption of guilt arising from recent possession of stolen property is strong, slight, or weak, according to the particular facts surrounding any given case, and the cases are very rare in which the presumption of guilt can be held, as matter of law, to be strong, though the presumption in this case is stronger than usual, owing to the other facts and circumstances, as the possession of the defendant, when first discovered by Cole, was very recent after the theft had been committed, and the circumstances of the case surrounding it tended very strongly to convince a reasonable man that the defendant was the thief.

It is unnecessary, though, to consider this question any further, as the charge of the court was as favorable to the defendant as he had a right to expect; nor do we think it was necessary for the court to charge specially as to the rule in regard to circumstantial evidence. There was no chain of circumstances in this case which required the court to tell the jury that each circumstance which constituted a link in the chain should be established to their full satisfaction. A chain is no stronger than its weakest link, it is true; but there is no series of facts in this case necessary to be considered by the jury in order to convict the defendant. The case was without complication and depended mainly upon the credit which the jury should- attach to the testimony of John Cole, the witness for the State, when considered in connection with the other evidence in the case. In S. v. Adams, 138 N. C., 688, we said: “No set of words is required by the law in regard to the force of circumstantial evidence. All that the law requires is that the jury shall be clearly instructed that unless after due consideration of all the evidence they are ‘fully satisfied’ or ‘entirely convinced’ or ‘satisfied beyond a reasonable doubt’ of the guilt of the defendant, it is their duty to acquit, and every attempt on the part of the courts to lay down a ‘formula’ for the instruction of the jury, by which to ‘gauge’ the degrees of conviction has resulted in no good.” These are the words used by Chief Justice Pearson in S. v. Parker, 61 N. C., 473, which we quoted and approved in the Adams case, as “they present in a clear and forceful manner the true principle of law upon the subject.”

There are some questions of evidence in the case, which we will briefly consider. The witness John Cole was permitted to refer to the contents of a letter, written by him to the sheriff, without the letter being produced and offered in evidence. He stated that, in the letter, he said to the sheriff that he had not stolen the mule. This did not tend to prove anything prejudicial to the defendant, and, besides, it was collateral to the issue, and the contents of the letter could be shown without producing it. S. v. Ferguson, 107 N. C., 846; S. v. Sharp, 125 N. C., 631. "What Joe Cobb, a witness for the State, testified as to his conversation with John Cole, in regard to the arrangements he had made with the defendant, was corroborative of Cole’s evidence, and was, therefore, competent, Cole having been previously examined as a witness. S. v. Freeman, 100 N. C., 434; S. v. Maultsby, 130 N. C., 664. In Freeman's case, supra, it is said: “This is in consonance with adjudications in this State, which, whenever the witness is impeached and in whatever manner, even if it is done in the cross-examination, permits his credit to be sustained by proof of declarations made to others similar to the testimony given in and assailed, and these may be proved by the witness who made them.”

It seems that tbe solicitor, in the course of the trial, had stated that he- would not ask the jury to convict upon the sole and unsupported testimony of John Cole, who was an accomplice, and the judge repeated the remark of the solicitor in his charge to the jury, and the defendant entered exception thereto. We do not see how this was prejudicial to the defendant, even if it was error, for the jury could xoroperly convict upon the unsupported testimony of John Cole, if they found that he had told the truth in regard to the matter, even though he was an accomplice of the defendant. The judge virtually told the jury, by referring to this remark of the solicitor, that they should not convict the defendant unless they believed that John Cole’s story of what had occurred between him and the defendant, and as to what he saw at the bridge, had been supported by other evidence.

The other exceptions are without merit, and, besides, the rulings of the court were harmless, if erroneous. We have carefully reviewed the entire record, including the great volume of evidence sent up to this Court, by question and answer taken down by and recorded by a stenographer, and have failed to find any error committed by the court in the trial of the cause.

No error.  