March 29, 1946. Upon an indictment charging him with (1) breaking and entering a house with intent to steal, (2) grand larceny, and (3) receiving stolen goods, knowing the same to have been stolen, appellant, Eddie Baker, a Negro, was convicted on the first and second counts and sentenced to imprisonment *Page 197 for a period of eight months. At the close of the State's testimony, his counsel moved for the direction of a verdict of acquittal. After the jury returned its verdict, appellant moved for a judgment of acquittal non obstante veredicto and failing in that, for a new trial. All of these motions were refused and this appeal followed.
It is first contended that the trial Judge erred in refusing to direct a verdict of acquittal on the ground that the testimony was insufficient to support a conviction. The determination of this question necessitates a brief review of the evidence.
Brown McCollum, a farmer residing in Dillon County, had approximately 580 bushels of oats stored in an unoccupied tenant house. On or about Saturday, July 15, 1944, someone pried open a window that was nailed, entered the house, and removed a quantity of oats. High weeds around the house were found "mashed down at the window." It rained during that day and night. The theft of the oats was first reported to Mr. McCollum on the following Monday morning, at which time he, along with a deputy sheriff of Dillon County, started an investigation. The tracks of some vehicle with rubber tires were seen in a farm road about ten or fifteen steps from the tenant house and between this point and the window of the house there were some oats scattered on the ground. The tracks showed that they were made when the ground was wet and that there was a light shower after the tracks were made. On account of the rain it was impossible to determine the tread of the tires. On the following Wednesday, four days after the oats were stolen, the deputy sheriff searched a barn on a farm rented by appellant as a sharecropper, which was located about five miles from the farm of McCollum, and found eight full sacks of oats and another partly filled. He then went to a nearby field where appellant was working and inquired about the oats. Appellant replied that he had bought them on the preceding Saturday night from another Negro, giving his name, who lived at Rowland, North Carolina. Thereupon the deputy *Page 198 sheriff procured a warrant for the Negro named by appellant and proceeded to Rowland to arrest him, but after a diligent search in that community was unable to find any Negro by that name.
Mr. McCollum, in describing the oats stolen from his tenant house, testified as follows: "Q. Describe the kind of oats you had, how you could tell them from other oats? A. Well, the oats in this house, I was gathering them kind of late about the last of June, and it was spring oats, they did not mature so well, they were slightly colored and also had some weeds in them that had dried up. We had to leave some of them out a day or two and they gathered them and let the sun dry them out and the weeds curled up. Q. Was that usual for your community, gathering oats that late? A. I don't know of anyone else that gathered any around that time."
The deputy sheriff carried the sacks of oats found in appellant's barn to Mr. McCollum's house. The oats and sacks were still wet. On direct examination, Mr. McCollum testified as follows with reference to the resemblance of these oats to the oats stolen: "Q. Explain to the jury how the oats in those sacks compared to the oats that you lost? A. By having samples from the house and taking a sample out of the sacks they looked identical to me. Q. In what way? A. Well, they had those same little curled up weeds and they were damaged and were slightly dark and they were small, I mean the size of them was about the same." And on cross examination, as follows: "Q. The only thing you know is you missed some oats and that they brought some oats back that looked like yours? A. Well, when you put the two together, they were identical. Q. But you could not positively swear that nobody else besides yourself had that sort of oats, especially if they had a particular weed seed in them and if they were spring oats and were slightly damaged, that is not much of an indication, is it? A. No. Q. So it would be hard to swear positively that they were your oats? * * * A. I believe they were." *Page 199
Mr. McCollum was not asked to estimate the quantity of oats removed from his tenant house. He testified, however, that "you could see where they had shoveled out of the pile or taken out of the pile."
The deputy sheriff's testimony corroborated that of McCollum with reference to the resemblance between the oats stolen and those taken from the barn of appellant. This officer further testified that he found some oats of the same character scattered in the car of appellant. With reference to the automobile tracks, he testified as follows on cross examination: "Q. And you did not see any resemblance between his (appellant's) automobile tires and the tires that you saw there in the road? A. I could not tell anything about it because the ground was wet from the time the tires were there."
The foregoing is a summary of the testimony offered by the State. The appellant testified that on the Saturday night of the alleged theft he was stopped by two men who had a truck bearing a North Carolina license tag parked on the side of the road with a flat tire; that after assisting them in fixing the tire, they offered to sell him nine bags of oats, which he finally bought for about half price; that the two men, one a Negro and the other an Indian, then carried the oats in this truck to his barn; and that he had never seen the Negro before, but had previously seen the Indian, who lived near Rowland, North Carolina, once or twice.
If the evidence was sufficient to identify the oats found in appellant's possession as those stolen from the prosecuting witness, it was incumbent upon appellant to give some satisfactory explanation of his possession consistent with his innocence; otherwise, the law presumes him to be the thief.State v. Winter, 83 S.C. 153, 65 S.E., 209; State v. Rowe,122 S.C. 448, 115 S.E., 586; State v. Campbell et al., 131 S.C. 357,127 S.E., 439; State v. Roof, 196 S.C. 204,12 S.E.2d 705. Appellant recognizes this well-established principle, but earnestly contends that the evidence as to identity is insufficient. *Page 200
Accepting as true the testimony of the State, as we are required to do in passing on this question, it was sufficient if believed by the jury, to establish the following circumstances: The oats stolen had unusual distinguishing features; they were removed while it was raining; appellant, about the same time, received some oats with the same distinguishing features, which were wet; a few oats similar to those stolen were found scattered in appellant's car, no one bearing the name given by appellant as that of the person from whom he bought the oats could be found.
It appears to be well settled that the degree of proof as to the identity of the stolen goods depends in some measure on the time which elapsed between the commission of the theft and the receipt of the property by the accused. If the possession be not recent, stricter proof of identity is required than in the case where the possession is very recent.State v. Slack, 1 Bailey, 330; Gravely v. Commonwealth,86 Va., 396, 10 S.E., 431.
In view of the peculiar earmarks of the oats stolen in the instant case, the recency of the possession, and all the surrounding circumstances, we think the evidence was sufficient to warrant the jury in drawing the conclusion that the oats found in appellant's possession were those stolen from the prosecuting witness. The motion for a directed verdict of acquittal was, therefore, properly refused. Of course, it was the function of the jury to pass upon the credibility of the witnesses and the weight to be given to the testimony. That body was at liberty to conclude that the identity of the property had not been established beyond a reasonable doubt or, if established, that the accused had given a satisfactory explanation of his possession consistent with his innocence. We are only holding that the testimony was sufficient to justify the submission of these questions to the jury.
We have carefully considered the cases relied on by appellant, but in none of them do we find that the property stolen had characteristics or earmarks as strong or outstanding as those possessed by the property stolen in this case. *Page 201 For example, in State v. Hamilton, 138 S.C. 164,136 S.E., 391, relied on by appellant, Camel and Chesterfield cigarettes were found in defendant's possession, but there was no way to distinguish these from those stolen or other cigarettes of the same brands; in State v. Martin et al., 118 S.C. 21,110 S.E., 78, lard and cakes were stolen, but neither had any distinguishing features.
It is next contended that the trial Judge erred in failing to charge the law governing circumstantial evidence. There was no request that he do so. But, irrespective of a request, the trial Judge is required to instruct the jury as to the rules governing circumstantial evidence where the State depends solely upon this class of evidence to support a conviction.State v. Bunyon, 137 S.C. 391, 135 S.E., 361; State v.Rickenbaker et al., 187 S.C. 448, 198 S.E., 43. We think in this case the State depended entirely upon circumstantial evidence to connect the accused with the theft and the trial Judge erred in failing to charge the rules applicable thereto. There is no evidence of a confession by the accused. He did not admit that the oats in his possession belonged to the prosecuting witness. The identity of the stolen goods was a hotly contested issue and the evidence offered by the State to prove identity was of a circumstantial nature. See annotation in 69 L.R.A., 193. This contention of appellant must be sustained.
Several other questions are raised by appellant's exceptions. As there must be a new trial and on the next trial the evidence may not be the same, we think it better not to pass upon the remaining questions and intimate no opinion thereabout.
Judgment is reversed and a new trial granted.
MR. ASSOCIATE JUSTICE STUKES and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON CONCUR. MR. ASSOCIATE JUSTICE TAYLOR and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER dissent.