#### STATE v. W. P. YOW, JR.

(Filed 5 June, 1947.)

1. Receiving Stolen Goods § 8—

A verdict of “guilty of receiving stolen goods” is insufficient to support a judgment imposing sentence for receiving- stolen goods knowing' them to have been stolen.

2. Receiving Stolen Goods § 6—

Evidence that the witness had had a pistol stolen from his car in front of defendant’s sandwich shop, that defendant was advised of the theft and promised if he found out anything about it he would let the witness know and try to get the pistol back for him, and that some two months thereafter the pistol was found upon search in defendant’s absence in a dresser drawer in the bedroom of defendant’s wife, *is held*insufficient to be submitted to the jury in a prosecution for receiving stolen goods knowing them to have been stolen, since the evidence fails to show defendant received the property, or, if he did, that he had felonious intent.

8. Receiving Stolen Goods § 4—

The inference arising from the recent possession of stolen property has no application to a charge of receiving."

4. Receiving Stolen Goods § 2—

The offense pronounced by G. S., 14-71, consists of receiving with guilty knowledge and felonious intent goods which previously had been stolen, and sufficient evidence of all the essential elements of the offense must be made to appear in order to sustain a conviction.

Bark-hill, J., dissents.

Appeal by defendant from. *Clement, J.,*at January Term, 1947, of EoRsyth.

Reversed.

Tbe defendant was indicted for tbe larceny of a pistol, tbe property of J. H. Hemrick, Jr. There was a second count in tbe bill charging defendant with receiving tbe stolen pistol knowing it to have been stolen.

From tbe evidence offered by tbe State it appeared that Hemrick’s pistol was stolen from tbe glove compartment of bis automobile while it was in front of defendant’s sandwich shop, and that defendant, whom Hemrick bad known for 25 years, bad seen him place it there, and was later advised of tbe theft. However, others bad been, -at tbe time, about tbe shop and tbe automobile. Tbe evidence was not clear whether de*586fendant bad opportunity to take it or not. Hemrick expressed opinion tbat be did not tbink defendant bad stolen bis pistol, and defendant said if be found out anything about it be would let Hemrick know and try to get tbe pistol for him.

Tbe State offered evidence tbat two months later officers with search warrant went to defendant’s place. Defendant was away from borne. Tbe officers saw Mrs. Yow in tbe bedroom, sick in bed, and asked her where tbe automatic Colt pistol was, and she said in tbe dresser .drawer. Tbe officers found tbe pistol lying in tbe top drawer not concealed. Hemrick identified tbe pistol as bis.

Tbe jury returned verdict “guilty of receiving stolen goods.” Upon tbat verdict judgment was rendered imposing sentence. Defendant appealed.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*William H. Boyer and H. Bryce Parker for defendant.*

Devin, *J.*

Tbe failure of tbe jury to find tbe defendant guilty of larceny amounted to an acquittal on tbat charge, and tbe verdict “guilty of receiving stolen goods” was insufficient to support tbe judgment on tbe second count in tbe bill, entitling tbe defendant to a *venire de novo*on tbat count. *S. v. Shew,*194 N. C., 690, 140 S. E., 621; *S. v. Cannon,*218 N. C., 466, 11 S. E. (2d), 301.

However, tbe defendant insists tbe evidence offered was insufficient to show tbat with felonious intent be received tbe stolen article knowing at tbe time tbat it was stolen, and tbat having been acquitted of the charge of larceny be was entitled to nonsuit on tbe second count.

Conceding tbat there was evidence tbat tbe pistol was stolen, and that tbe defendant was made aware of tbat fact shortly after tbe theft, tbe only remaining question for decision was whether there was sufficient evidence to go to tbe jury tbat tbe defendant with felonious intent received tbe pistol with knowledge at tbe time tbat it bad been stolen. *S. v. Morrison,*207 N. C., 804, 178 S. E., 562; *S. v. Oxendine,*223 N. C., 659, 27 S. E. (2d), 814. On this point tbe only evidence is tbat two months after tbe theft the pistol was found in a dresser drawer in tbe bedroom of defendant’s wife (presumably tbe room also ordinárily occupied by tbe defendant when at borne). Tbe defendant was not present. There was no suggestion as to bow tbe pistol came to be there. Tbe defendant was acquitted of tbe larceny. Presumably tbe pistol, if stolen, was stolen by someone else, and to make defendant guilty on tbe second count be must have received tbe stolen pistol with felonious intent. Evidence merely.tbat it was found in a drawer in defendant’s wife’s bedroom would seem to be lacking in sufficient probative value to war*587rant conviction on the charge of receiving stolen goods knowing them to have been stolen. The evidence fails to show that the defendant received the stolen article, or, if so, to negative the reasonable inference that it was for the purpose of returning it, as he had promised to do. The inference arising from the recent possession of stolen property has no application to the charge of receiving. *S. v. Best, 202*N. C., 9, 161 S. E., 535; *S. v. Lowe,*204 N. C., 572, 169 S. E., 180.

Receiving stolen goods knowing them to have been stolen is a statutory offense. G. S., 14-71. The criminality of the action denounced by the statute consists in receiving with guilty knowledge and felonious intent goods which previously had been stolen. Sufficient evidence of all the essential elements of the offense must be made to appear in order to sustain a conviction. *S. v. Minton,*61 N. C., 196; *S. v. Adams,*133 N. C., 667, 45 S. E., 553; *S. v. Oxendine, supra; S. v. Fowler,*117 *W.*Va., 761, 188 S. E., 137; 68 A. L. R., 187; 45 A. J., 386.

In view of defendant’s acquittal on the charge of larceny and the insufficiency of the evidence on the second count, we think the defendant is entitled to the allowance of his motion for judgment of nonsuit, and that the judgment must be

Reversed.

Barnhill, J., dissents.