STATE OF NORTH CAROLINA v. ROBERT EARL HOLLOWAY, 262 N.C. 753

PER CuRiam. To convict defendant, the State relied upon the rule of evidence that recent possession of stolen property tends to show the possessor guilty of the theft. State v. Holbrook, 223 N.C. 622, 27 S.E. 2d 725.

Defendant challenges the following italicized portions of his Honor’s charge: “The presumption that the possessor is the thief which arises from the possession of stolen goods is a presumption of fact and not of law and is strong or weak as the time elapsing between the stealing of the goods, and the finding them in the possession of the defendant, is short or long and this presumption is to be considered by you merely as an evidential fact, along with the other evidence in the case in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendants’ guilt (

E) and the duty to offer such explanation of possession as is sufficient to raise in the minds of the jury a reasonable doubt that they stole the property or broke into the building (

F) and the burden is not placed upon the defendants however recent the possession by them may be or may have been if you find such to be the case from the evidence and beyond a reasonable doubt, the possession, and the burden is still upon the State and remains upon the State to satisfy you from the evidence and beyond a reasonable doubt, as the Court has heretofore defined the term ‘reasonable doubt’ to you, the State relying upon what is known as the doctrine of recent possession as I have tried to explain that term to you . . . (

M) I have already instructed you that it is his (defendant’

s) duty to offer such explanation of his possession as is sufficient to raise in the minds of the jury a reasonable doubt that he neither stole the property or broke or entered the building (

N) but the burden of establishing a reasonable doubt as to his guilt is not placed on the defendants or either of them however recent the possession may have been but the burden is still upon the State to satisfy you from the evidence and beyond a reasonable doubt of his guilt or either of them.” Those portions of the charge to which defendant excepts are clearly erroneous. State v. Ramsey, 241 N.C. 181, 84 S.E. 2d 807.

After telling the jurors that the burden was on the State to satisfy them beyond a reasonable doubt that defendant was guilty, the judge charged that it was defendant’s duty to raise in the minds of the jury a reasonable doubt that he had neither entered the building nor stolen the televisions. The jury is not supposed to know which of two conflicting instructions is correct. State v. Starnes, 220 N.C. 384, 17 S.E. 2d 346; State v. Faulkner, 182 N.C. 793, 108 S.E. 756. For this prejudicial error there must be a New trial.