The count in the indictment against the prisoner, relied upon by the State, is that which charges him as the receiver of stolen property, knowing it to have been stolen, to-wit: A specified number of United States notes of five dollars each, of one dollar each, and of fifty cents each. In support of the charge, among other things the State offered to prove by one William Bailey that "a short time after the larceny, the prisoner came to his store and purchased several articles, and he saw several bills of money in his pocket-book, when the prisoner went to pay him, but did not notice the denomination of them." This testimony was objected to by the prisoner, but admitted by the Court. Was this error?
The rule of evidence as to its admissibility is, that "testimony which raises a mere conjecture, ought not to be left to a jury, as evidence of a fact which a party is required to prove. Matthews v. Matthews, 3 Jones, 132; Cobb v. Fogleman, 1 Ired., 440; State v. Allen, 3 Jones, 257. The State here *Page 101 was required to prove that the prisoner received the stolen "Treasury notes" described in the indictment. The evidence admitted to establish this fact, was that the prisoner was seen in a store, a short time after the larceny, whether a day, a week, or a month after, is not stated, that he purchased several articles and had some "bills of money," neither the amount or denomination of which was seen. Was the sum of money seen with the prisoner, unusual in amount? Was any of it, of the denomination of that which was stolen? Was there any incident, connected with the store transaction calculated to raise even a suspicion against him? A man is seen in a store, having some money and making some, we are to assume ordinary purchases, in the usual course of business. The circumstance of his having some money, was one common to all persons, who use a circulating medium and was unaccompanied by a single mark or incident, which distinguished his possession from that of others, of a similar sum of money. If the prisoners had been indicted for stealing wearing apparel, it would have been just as competent for the State to prove, that a short time after the larceny, the prisoner was seen dressed in a suit of clothes. The evidence admitted not only does not tend to establish the fact to be proved, but does not afford a rational ground of conjecture of his guilt. What effect this testimony had upon the jury, if any, we have no means of knowing. But as it may have misled them to the prejudice of the prisoner, and was improperly admitted, there must be a venire de novo. It is unnecessary to, and we do not decide the other exceptions; but Starkie on Evidence, 335, and Pollok v. Pollok,68 N.C. 46, seem to hold that where the contents of a writing come collaterally in question only and are not material to the issue, such writing need not be produced, but parol evidence of its contents may be given.
PER CURIAM. Venire de novo. *Page 102