The only question arising on the record for us to consider is, Was there any evidence of the larceny, or of the felonious receiving, which warranted the conviction of the defendant?
If there was no evidence, or if the evidence was so slight as not reasonably to warrant the inference of the defendant's guilt, or furnish more than material for a mere suspicion, it was error to leave the issue to be passed on by the jury, and they should have been directed to acquit. Cobb v. Fogleman, 23 N.C. 440; S. v. Williams, 47 N.C. 194. (472) If, however, there was evidence proper to be submitted to the jury, the jury alone must weigh and determine its credibility and sufficiency to establish the fact in dispute. It is of the highest importance in the administration of the law, alike in civil and criminal trials, *Page 317 that the respective and well marked functions of the judge and jury be kept separate and distinct, and in their exercise neither one be allowed to interfere with the other.
The question now presented is this, Do the facts proved, if believed by the jury, reasonably warrant the inference deduced from them of the defendant's guilt? We are of the opinion that the evidence was properly left to the jury, and that it is not so defective as to authorize the Court on that account to disturb the verdict. It was proved that lint cotton was stolen from some bales on the platform of the company's warehouse on the night of 22 December, and four bags containing cotton like that taken from the bales were found near the place, some on the track and some hidden under a freight car. The defendant was there at the time, and was seen behind a pile of wood. About a month afterwards two bags, in all respects similar to the other four and with the same marks upon them, filled with the same sort of cotton, were found concealed in a crib in possession of the defendant, under some seed cotton, about a mile from the warehouse; and, so far as appears to us, no explanation is given by the defendant.
It was not, in our opinion, an unreasonable conclusion of the jury that the cotton discovered in the defendant's crib was part of that stolen from the bales; and if so, that it was stolen by the defendant. If the identity of the cotton be conceded, the fact of its being found in his crib covered up and concealed under other cotton, with the other concurring evidence, tends strongly to establish the truth of the charge. The possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker, as the possession is nearer to (473) or more distant from the time of the commission of the offense. S. v.Jones, 20 N.C. 122; S. v. Johnson, 60 N.C. 151. And such evidence must be left to the jury to weigh and consider in determining the question of the defendant's guilt. S. v. Lytle, 27 N.C. 58; S. v. Williams, 47 N.C. 194;S. v. Shaw, 49 N.C. 440.
In S. v. Kent, 65 N.C. 311, the facts of which were not unlike those of our case, Reade, J., referring to the exception taken that the bacon found was not sufficiently identified as the bacon stolen, says: "There was, however, evidence that the bacon found was the bacon stolen. The prosecutrix testified that her bacon was unsmoked and had a yellow mould on it. The bacon found was unsmoked and had a yellow mould on it, and she believes it was hers. And the defendant pointed out the place where the bacon was found and spoke of it as hers."
The evidence in the case was properly left to the jury, and of its sufficiency to prove to their satisfaction the guilt of the defendant, they *Page 318 alone must determine. The judge who tried the cause had power to set aside the verdict if in his opinion injustice was done to the defendant. He has not thought proper to do so, and we cannot disturb the verdict.
PER CURIAM. No error.
Cited: S. v. Waller, 80 N.C. 402; S. v. Matthews, ib., 424; Brown v.Kinsey, 81 N.C. 250; R. R. v. Morrison, 82 N.C. 145; Codner v. Bizzell,ib., 393; S. v. Bryson, ib., 579; S. v. Bryson, 82 N.C. 579; S. v. Rice,83 N.C. 663; S. v. James, 90 N.C. 705; S. v. Atkinson, 93 N.C. 523;S. v. McBryde, 97 N.C. 396; S. v. Turner, 119 N.C. 848; S. v. McRae,120 N.C. 609; S. v. Gragg, 122 N.C. 1091.
(474)