
    STATE v. ADAMS.
    (Filed October 20, 1903.)
    LARCENY — Receiving Stolen Goods — Instructions■ — Indictment — Oounts.
    
    Where an indictment charges in one count larceny and in another the receiving of stolen goods, and the instructions relate only to the first count, and the defendant is found guilty on the second count, a new trial will he granted.
    INDICTMENT against H. B. Adams, beard by Judge II. B. Bryan and a jury, at July Term, 1903, of tbe Superior Court of Bobeson County. Erom a verdict of guilty and judgment tbereon tbe defendant appealed.
    
      Bdbert D. Gilmer, Attorney-General, and McLean, McLean & McCormick, for tbe State.
    
      McIntyre & Lawrence, for tbe defendant.
   Oonnoe, J.

Tbe defendant was indicted in one count for tbe larceny of two sacks of guano, and in tbe second count for receiving tbe said two sacks of guano knowing them to have been stolen.

Tbe State introduced J. W. Carter, wbo testified that be lived in Maxton and was a merchant; that on tbe nigbt of May 20tb bis warehouse was broken open and some Acme Guano taken out. Several sacks were lost. That be saw tracks at tbe back of tbe door of tbe warehouse, and about thirty or forty steps away be found wheelbarrow tracks. S-ame tracks from back door to wheelbarrow. That be followed tbe wheelbarrow down tbe railroad and across through tbe woods and struck a cotton-patch that defendant cultivates right near bis bouse. That tbe track went by end of cotton rows and then struck the main road within about fifty yards of defendant’s house and then went up to a shelter a.t or near his back door. That he saw defendant next morning; met him a.t end of cotton rows. That he was dragging his feet like he was trying to coyer up tracks. That they passed each other and defendant said “good morning.” Witness told him that some one had broken into his warehouse the night before and had taken two sacks of guano and that he had followed the wheelbarrow! tracks, and witness said: “Now, Adams, pretty close to your house.” Witness asked him if he knew anything of the fertilizer. Defendant said “Yes,” that there were two sacies in that shelter. They went to the shelter and found two sacks of fertilizer covered up. They began to uncover it. Defendant said he didn’t know how it got there; that the year before he had bought some from some of the boys; that perhaps Jesse McLean put it there. McLean came up about this time and Adams asked him if he put it there. McLean said: “You know very well I had nothing to do with it.” Witness went back to town and got out a warrant. That he could not find where tracks led from the shelter. That he found the wheelbarrow some five hundred yards away in a ditch. Bushes had grown up beside the ditch. That they found a place near the railroad where it looked like the whole load, wheelbarrow and all, had been upset. Milton McRae claimed the wheelbarrow. That defendant requested that Jesse McLean be called as a witness before the magistrate. He asked the deputy sheriff to get him as a witness, but he did not ask the magistrate to subpoena him.

Andrew Wilkinson, who was introduced for the State, says that he saw the wheelbarrow in the ditch on the night of the 20th about 12 o’clock; that he went after Andrew Malloy, and when he came back the wheelbarrow and guano were gone; that he saw the back door of Carter’s warehouse open, and saw tracks the next day and measured the tracks; that the beel was slightly curved in front and worn at back, and he measured defendant’s shoe and it was the same as the tracks— front part of heel was curved; that he saw defendant’s shoe put in the tracks — fitted exactly — he saw the tracks following the wheelbarrow and they looked like those he had measured.

Defendant testified that he did not leave his house during the night; that his wife was about to be confined; he saw the guano there early the next morning and told Robert George about it; that he was not kicking out tracks, but was kicking in the dirt to see if it was wet enough to set out potato slips; it had rained the night before.

The defendant’s wife testified that her husband was home all night, and she was expecting to be confined and did not sleep well; that she was confinéd on the 24th; that on Friday morning the defendant spoke to her about the guano, and said he did not know where it came from.

Robert George, witness for the defendant, testified that he saw the defendant the next morning and he said there was some guano that should be moved.

His Honor charged the jury among other things as follows: “The law is that a person found in such recent possession of stolen property that he could not reasonably have gotten possession unless he had stolen it raises a presumption of his guilt and throws the burden on the defendant t'o account for his possession. If you find that Carter’s property was stolen and found next day in defendant’s possession, and he has failed to account for it to your satisfaction, then you will find him guilty.” Defendant excepted. The jury returned a verdict “guilty of receiving good knowing them to have been stolen,” and from the judgment rendered thereon the defendant appealed.

We must assume that the charge is correctly set out in the record, and as it nowhere appears therein that his Honor gave any instruction to tbe jury upon tbe second count in tbe bill of indictment, or directed tbeir attention to tbe testimony or law bearing thereon, we think tbe defendant is entitled to a new trial. Tbe verdict omits any finding on the first count, and thus leads to tbe conclusion that tbe jury did not find • that tbe defendant made tbe track following tbe wheelbarrow to tbe shelter under which the guano was found. It is by no means clear that tbe guano was, in tbe usual or legal signification of tbe term, found in the possession of the defendant. Tbe shelter was open, easily accessible to any one, about fifty yards from tbe public road and near tbe defendant's back door. It is evident that but one person carried tbe guano to tbe place where it was found. The' wheelbarrow was not tbe property of tbe defendant, nor was it shown that any tracks were found returning to tbe defendant’s house from tbe place where it was found. So soon as tbe defendant is asked by the prosecutor whether there was any guano on bis premises be promptly responded and showed it to him. Eliminating tire tracks, and taking it as found by the jury that they were made by some person other than tbe defendant, tbe only evidence connecting him with tbe larceny is tbe fact that the guano is found in an open buggy-shelter on bis premises tbe morning following tbe larceny. His conduct was not, it seems to us, inconsistent with that of an honest man. While we do not say that there was no evidence fit to1 be considered by the jury, we think tbe Judge should have instructed them in regard to tbe facts necessary to be found before they could convict tbe defendant upon tbe second count in tbe bill. His charge in regard to tbe presumption arising from possession was limited to tbe general verdict of guilty without regard to tbe separate and distinct charges contained in tbe bill. The presumption which the law raises from tbe recent possession of stolen property is that tbe person having such possession is tbe thief, not that some one else being the thief tbe defendant’s possession is with guilty knowledge of the theft. Certainly if one awoke in the morning finding a stolen horse in his stable, and it being shown that some other person put it there, the law would raise no presumption that it was done with the knowledge of the owner of the stable. This would be a hard rule, and in direct contravention of that which Mr. Justice Ashe lays down in State v. Massey, 86 N. C., 660, 41 Am. Rep., 478, quoting the dissenting opinion in State v. Neely, 74 N. C., 425, 21 Am. Rep., 496, which was adopted as the law: “It is neither charity nor common sense nor law to infer the worst intent which the facts will admit of. The reverse is the rule of justice and law. * * *

The guilt of a person is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.” The charge of his Honor, assuming that the stolen property was found in the possession of the defendant, says to the jury that the law presumes that he is guilty. The question arises: guilty of what ? The law says: of the theft. The jury say he is not guilty of the theft, but is guilty of receiving, etc. Under the general charge of his Honor, the jury may well have applied the language to the second count and found him guilty “by presumption of law,” as was the view of Mr. Saddletrees in the case of Scott’s unfortunate heroine, Efiie Deans. Presumptions of law are useful to courts and juries in seeking to ascertain the truth, but the criminal records of all ages and people have shown that great and often irreparable wrongs have been done when they are pressed too far. It may well admit of question whether it be not more consonant with the genius of our law to permit the juries, under proper instruction of the Court, to find the truth as they believe it to be, certainly in criminal cases, drawing such inferences and conclusions from admissions and facts proved to their satisfaction as experience, observation and reason suggest. The facts in regard to finding the guano, the place in which it was found, the time at which it was found, the conduct, language, etc., of the defendant, are all circumstances to be considered by the jury, subject to all such reasonable and just inferences as they may draw therefrom. The distinction between a presumption of law and an inference of fact is clearly pointed out by Walker J., in Cogdell v. Railroad, 132 N. C., 852.

New trial.  