Tbe offense of receiving stolen goods is set forth in G. S. N. C. 14-73. That statute in part reads: “If any person shall receive any chattel, property, money, valuable security or other thing whatsoever, tbe stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made . . .”
To convict the State must prove that the defendant, with felonious intent, received the goods, the property of another, knowing at the time that the same had been previously stolen or taken from the owner in violation of G. S. N. C. 14-71. An essential- element of the offense is that the goods had been previously stolen or taken from the owner in violation of the statute at the time of receipt by the defendant. If the property was not stolen or taken from the owner in violation of the statute, as where the original taking was without felonious intent, or was not against the owner’s will or consent, the receiver is not guilty of receiving stolen property. S. v. Brady, 237 N.C. 675, 75 S.E. 2d 791; S. v. Yow, 227 N.C. 585, 42 S.E. 2d 661; S. v. Oxendine, 223 N.C. 659, 27 S.E. 2d 814; S. v. Shoaf, 68 N.C. 375; Kirby v. U. S., 174 U.S. 47, 43 L. Ed. 890; 26 N. C. Law Review 192, et seq.; 76 C. J. S., Receiving Stolen Goods, Sec. 2a; 45 Am. Jur., Receiving Stolen Property, Sec. 5.
“Inasmuch as the statute defines the crime as one including both the fact of theft and the fact of knowledge of the theft, it follows that, if there was no theft, the buying of the property is not criminal, even if 'the buyer believes the property to have been stolen.” Le Fanti v. U. S., N. J., 259 F. 460, 170 C. C. A. 436.
*131 Farzley v. State, 231 Ala. 60, 163 So. 394, is a case of receiving stolen property. Tbe Court said: “But it is essential to tbe crime bere charged tbat tbe goods received by defendant were stolen and retained tbat status until tbey were delivered to defendant.”
Tbe defendant assigns as error tbe refusal of tbe trial court to allow ber motion for nonsuit as to eacb count in eacb indictment. Tbe jury acquitted tbe defendant and Henrietta Monroe as to tbe larceny counts in botb indictments.
Mr. Margolis testified tbat be did not know bow tbe goods shown him got out of bis store, and did not know whether tbey were stolen or not. Tbe sole witness for Belk’s Department Store said in respect to tbe shoes shown him “I wouldn’t say these shoes came from our store; I only know we handle shoes of tbat brand and make”; and in respect to a sweater shown him, all be said was Belk’s bandies tbat type sweater, but be couldn’t say whether the sweater was one of Belk’s or not.
Tbe evidence, considered in tbe light most favorable to tbe State, though it may give rise to speculation and conjecture, is not of sufficient probative force to be submitted to a jury under tbe second counts in eacb indictment because this essential element of tbe offense of receiving stolen property tbat tbe property put out in tbe field by tbe defendant and Henrietta Monroe bad been previously stolen or taken from tbe owner or owners in violation of G. S. N. C. 14-71 is lacking. S. v. Smith, 236 N.C. 748, 73 S.E. 2d 901; S. v. Gaddy, 209 N.C. 34, 182 S.E. 667; S. v. White, 89 N.C. 462; Wittkowsky v. Wasson, 71 N.C. 451.
Tbe State in its brief in discussing tbe counts of receiving stolen property relies upon S. v. Holder, 188 N.C. 561, 125 S.E. 113. Tbe case is not in point. In tbe opinion tbe Court says: “It is tbe position of tbe defendants tbat tbey cannot be convicted of larceny, but only of forcible trespass, because of tbe open manner in which tbe property was taken.”
It is ordered tbat tbe conviction under eacb indictment and the sentence of the appellant be vacated, as we sustain ber motion for a compulsory nonsuit.
Probably tbe merchandise carried into tbe field by the defendant and Henrietta Monroe bad in fact been previously stolen, but sufficient evidence of tbat does not appear in tbe Record, and we cannot go out of tbe case sent up.
Reversed.