STATE
v.
COLLINS.
No. 364.
Supreme Court of North Carolina.
April 14, 1954.*272 Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Max O. Cogburn, Canton, Member of Staff, for the State.
Luther Hamilton and Luther Hamilton, Jr., Morehead City, for defendant, appellant.
PARKER, Justice.
The offense of receiving stolen goods is set forth in G.S.N.C. § 14-71. That statute in part reads: "If any person shall receive any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made * * *."
To convict the State must prove that the defendant, with felonious intent, received the goods, the property of another, knowing at the time that the same had been previously stolen or taken from the owner in violation of G.S.N.C. § 14-71. An essential element of the offense is that the goods had been previously stolen or taken from the owner in violation of the statute at the time of receipt by the defendant. If the property was not stolen or taken from the owner in violation of the statute, as where the original taking was without felonious intent, or was not against the owner's will or consent, the receiver is not guilty of receiving stolen property. State v. Brady, 237 N.C. 675, 75 S.E.2d 791; State v. Yow, 227 N.C. 585, 42 S.E.2d 661; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814; State v. Shoaf, 68 N.C. 375; Kirby v. U. S., 174 U.S. 47, 19 S. Ct. 574, 43 L. Ed. 890; 26 N.C. Law Review 192, et seq.; 76 C.J.S., Receiving Stolen Goods, § 2a; 45 Am.Jur., Receiving Stolen Property, Sec. 5.
"Inasmuch as the statute defines the crime as one including both the fact of theft and the fact of knowledge of the theft, it follows that, if there was no theft, the buying of the property is not criminal, even if the buyer believes the property to have been stolen." Le Fanti v. U. S., 3 Cir., 259 F. 460, 464, 170 C.C.A. 436.
Farzley v. State, 231 Ala, 60, 163 So. 394, 395, is a case of receiving stolen property. The Court said: "But it is essential to the crime here charged that the goods received by defendant were stolen and retained that status until they were delivered to defendant."
The defendant assigns as error the refusal of the trial court to allow her motion for nonsuit as to each count in each indictment. The jury acquitted the defendant and Henrietta Monroe as to the larceny counts in both indictments.
Mr. Margolis testified that he did not know how the goods shown him got out of his store, and did not know whether they were stolen or not. The sole witness for Belk's Department Store said in respect to the shoes shown him "I wouldn't say these shoes came from our store; I only know we handle shoes of that brand and make;" and in respect to a sweater shown him, all he said was Belk's handles that type sweater, but he couldn't say whether the sweater was one of Belk's or not.
The evidence, considered in the light most favorable to the State, though it may give rise to speculation and conjecture, is not of sufficient probative force to be submitted to a jury under the second counts in each indictment because this essential element of the offense of receiving stolen property that the property put out in *273 the field by the defendant and Henrietta Monroe had been previously stolen or taken from the owner or owners in violation of G.S.N.C. § 14-71 is lacking. State v. Smith, 236 N.C. 748, 73 S.E.2d 901; State v. Gaddy, 209 N.C. 34, 182 S.E. 667; State v. White, 89 N.C. 462; Wittkowsky v. Wasson, 71 N.C. 451.
The State in its brief in discussing the counts of receiving stolen property relies upon State v. Holder, 188 N.C. 561, 125 S.E. 113, 114. The case is not in point. In the opinion the Court says: "It is the position of the defendants that they cannot be convicted of larceny, but only of forcible trespass, because of the open manner in which the property was taken."
It is ordered that the conviction under each indictment and the sentence of the appellant be vacated, as we sustain her motion for a compulsory nonsuit.
Probably the merchandise carried into the field by the defendant and Henrietta Monroe had in fact been previously stolen, but sufficient evidence of that does not appear in the Record, and we cannot go out of the case sent up.
Reversed.