#### STATE v. EARL MILLER.

(Filed 3 November, 1937.)

Receiving Stolen Goods §§ 2, 7 — Charge that defendant would, have guilty knowledge if he reasonably believed or knew goods to be stolen held error.

Guilty knowledge is an essential element of the offense defined by C. S., 4250, and while such knowledge may be implied or inferred by the jury from the facts and circumstances, it is error for the court to instruct the jury to the effect that defendant would have knowledge within the meaning of the statute if he received the goods under circumstances “such as to cause defendant to reasonably believe or know” that the property had been stolen, “reasonable belief” and “implied knowledge” not being synonymous.

Appeal by defendant from *Pless, J.,*at May Term, 1937, of RowaN. New trial.

*Attorney-General Seawell for the State.*

*Woodson & Woodson, P. S. Carlton, A. A. Whitener and George B. Uzzell for defendant, appellant.*

ScheNCK, J.

The appellant was convicted upon a bill of indictment charging that Earl Miller *“... 2*cases of Camel cigarettes, 2 cases of Chesterfield cigarettes of the value of two hundred and five dollars aforesaid, of the goods, chattels and moneys of the said Jake Rendle-man before then feloniously stolen, taken and carried away, feloniously did receive and have . . . the said Earl Miller . . . then and there well knowing said goods, chattels and moneys to have been feloni-ously stolen, taken and carried away, contrary to the form of the statute in such cases made and provided.”

*362Tbe appellant assigns as error tbe following excerpt from tbe charge: “Tbe term ‘knowledge/ gentlemen of tbe jury, is not so limited in its scope as to mean tbat a defendant must know to tbe extent of actually having seen tbe property stolen, but it means, gentlemen of tbe jury, tbat if tbe facts, tbe circumstances and tbe surroundings of tbe transactions at tbe time tbe property is received are sucb as to cause tbe *defendant to reasonably believe or hnow*tbat tbe property was stolen, tben, gentlemen of tbe jury, tbat would constitute knowledge witbin tbe purview and intent of tbe statute. *Using that as a definition,*gentlemen of tbe jury, if you shall find and find beyond a reasonable doubt, tbe burden being on tbe State to prove it, tbat tbe defendant, Earl Miller, received cigarettes which bad theretofore been stolen from Jake Eendle-man, tbe prosecuting witness, and you further find beyond a reasonable doubt tbat at tbe time of so doing be knew tbat tbe same bad theretofore been stolen, tben, gentlemen of tbe jury, tbe court instructs you tbat it would be your duty to render a verdict of guilty of receiving stolen property.” *We*are constrained to sustain this assignment of error.

C. S., 1250, under which tbe bill of indictment was drawn, provides tbat tbe person charged shall receive tbe stolen goods “knowing tbe same to have been feloniously stolen or taken,” thereby making guilty knowledge one of tbe essential elements of tbe offense, which tbe law requires to be proven beyond a reasonable doubt as a condition precedent to conviction.

*S. v. Stathos,*208 N. C., 456, does not sustain bis Honor’s charge. In tbat case it is said: “This knowledge may be actual or it *may*be implied when tbe circumstances under which tbe goods were received were sufficient to lead tbe party charged to believe they were stolen. However, while it is true tbat it is not necessary tbat tbe person from whom tbe goods are received shall state to tbe person charged tbat tbe goods were stolen, and while tbe guilty knowledge of tbe person charged may be inferred from tbe circumstances of tbe receipt of tbe goods, still it is necessary to establish either actual or implied knowledge on tbe part of tbe person charged of the fact tbat tbe goods were stolen.” It will be noted tbat tbe opinion uses tbe expression “may be implied” and not “will be implied.” In other words, “when tbe circumstances under which tbe goods were received were sufficient to lead tbe party charged to believe they were stolen,” tbe jury may find tbat be received tbe goods “knowing tbe same to have been feloniously stolen,” but it is not mandatory tbat tbe jury so find under sucb circumstances. *S. v. Spaulding,*211 N. C., 63. “To reasonably believe” and “to know” are not interchangeable terms. While tbe latter may be implied or inferred from circumstances establishing tbe former, it does not follow tbat reasonable belief and implied knowledge are synonymous. Tbe State must *363establish that the defendant received the goods “knowing- the same to have been feloniously stolen or taken,” and this is not necessarily accomplished by establishing the existence of circumstances “such as to cause the defendant to reasonably believe” the goods were stolen. Knowledge connotes a more certain and definite mental attitude than reasonable belief, and whether knowledge is implied from circumstances sufficient to establish reasonable belief is a question for the jury. “Where the defendant in a criminal action is charged with a statutory crime, it is incumbent on the State to satisfy the jury beyond a reasonable doubt, by the evidence, of all the facts which constitute the crime as defined by the statute.” *S. v. Folger,*211 N. C., 695.

For the error assigned the defendant is entitled to a new trial, and it is so ordered.

New trial.