STATE of North Carolina
v.
Carroll Lenley HALES.
No. 762SC786.
Court of Appeals of North Carolina.
April 6, 1977. Certiorari Denied May 18, 1977.*602 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Rebecca R. Bevacqua, Raleigh, for the State.
LeRoy Scott, Washington, for defendant-appellant.
Certiorari Denied by Supreme Court May 18, 1977.
ARNOLD, Judge.
The court instructed the jury properly on the doctrine of possession of recently stolen goods, but defendant challenges the instruction on the ground that the doctrine is unconstitutional in light of the United States Supreme Court decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Mullaney holds that the State has the burden of proving every element of a crime and that the State cannot shift this burden of proof to the defendant. Mullaney is inapposite to the case at bar, because the so-called recent possession doctrine does not shift the burden of proof to the defendant. The doctrine only allows the jury to infer that the defendant stole the goods, because the State first proved that the stolen goods were in defendant's possession so soon after the theft that it was unlikely that he obtained them honestly. The doctrine is only an evidentiary inference shifting to the defendant the burden of going forward *603 with evidence. Evidentiary inferences and presumptions such as this are unaffected by Mullaney. State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975).
Defendant next argues that the court should have granted his motions for nonsuit and judgment non obstante veredicto, because the State failed to prove that the seed corn and herbicide found in his barn were those that were stolen from Kerr-McGee. Defendant relies on State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966), and State v. Evans, 1 N.C.App. 603, 162 S.E.2d 97 (1968). In Foster, the defendant was shown to possess a stolen battery charger and six automobile tires identical in size, brand and tread design to six tires which were known to have been stolen along with the battery charger. Our Supreme Court held that the tires were not identified well enough to prove that they were the stolen tires. Defendant's conviction for theft of the tires was reversed. Evans followed Foster. There the State proved that the defendant had in his possession a quantity of cigarettes, beer, chewing gum, pickles and pigs feet which was similar to a quantity of items stolen from a tavern. The owner of the stolen merchandise was unable to identify the property in the defendant's possession. This Court held that there was insufficient evidence to prove that the goods in the defendant's possession were, in fact, the stolen goods.
On a motion for nonsuit or judgment n. o. v., the evidence is considered in the light most favorable to the State. The motion must be denied where there is sufficient evidence that the offense charged was committed and that the defendant committed it. State v. Stokesberry, 28 N.C.App. 96, 220 S.E.2d 214 (1975). Nonsuit is correctly denied in a larceny case where the State relies on the doctrine of possession of recently stolen goods and presents evidence of possession of the stolen goods by defendant soon after the theft. State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972). The State's evidence indicated that the exact quantities, brands and sizes of seed corn and herbicide which were stolen were found in defendant's barn the next day following the break-in.
This is not a case of just six tires, or a case of unknown quantities of goods such as beer and cigarettes. Here, the exact quantities, brands and sizes of the stolen seed corn and herbicide were found in defendant's possession. A great many variables coincided perfectly. It is a reasonable and logical inference that the goods discovered in defendant's possession were the stolen goods. Defendant's motions were properly denied.
Defendant's remaining assignments of error have been considered and there is found
No error.
BROCK, C. J., and PARKER, J., concur.