State v. Ballard

• Decision Date: 28 March 1887
• Citation: 1 S.E. 685,97 N.C. 443
• Parties: STATE v. BALLARD.
• Court: North Carolina Supreme Court

1 S.E. 685

97 N.C. 443

STATE v. BALLARD.

Supreme Court of North Carolina

March 28, 1887

Appeal from Anson county. Indictment for larceny.

On the trial of defendant for larceny, the prosecuting witness was asked on cross-examination if he had not gone to defendant's house, and finding him absent left a message with his wife. He denied leaving such message, and defendant's wife was called and asked if the witness had not left such a message, but she was not allowed to answer the question. Held, that the answer was properly excluded, as the examination, instead of being general, related to particulars, which were likely to distract the mind of the jury from the real issue.

The Attorney General, for the State.

P. D Walker, for defendant.

DAVIS J.

This was an indictment for larceny of growing crops, tried before GILMER, J., at September term, 1886, of Anson superior court. The indictment charged that the defendant, "one peck of corn, of the value of sixpence, the property of A. B Wheeless, then and there standing and remaining ungathered in a certain field of the said A. B. Wheeless, there situated feloniously did steal, take, and carry away," etc.

Robert A. Carter, a witness for the state, testified that he had employed three members of the bar to assist the solicitor in the trial, and that he had paid them for their services; that he had no interest in the property alleged to have been stolen by the defendant; and that the owner of the alleged stolen property had declined to prosecute this indictment. He was asked by the defendant's counsel if he had not gone to the defendant's house, about the time the indictment was found, carrying with him a double-barrel shotgun, and, finding that the defendant was not at home, if he had not said to the defendant's wife that, if the Ballards (meaning to include the defendant) did not get off from the land they were then on, he would put them all in jail. In answer to this question, he said he did go to the defendant's house with the shotgun, and, finding the defendant absent from his house, he left a message with the defendant's wife which was as follows: "Tell your husband [meaning the defendant] he must get off the land which I claim and he now holds." He further stated that the land claimed was then in suit between the witness (Carter) and W. K. Ballard. The wife of the defendant was then put upon the stand, in behalf of the defendant, and in the course of her testimony she was asked: "Did R. A. Carter come to the house of your husband, with a double-barrel shotgun, and, finding your husband away from home, say to you that if the Ballards [meaning the defendant and his father] did not get off from the land the defendant was then on, being the land then in suit between him and the defendant, he would put them in jail?" The solicitor objected to the question, and the answer thereto. The objection was sustained by the court, and the defendant excepted. There was a verdict of guilty. Motion for a new trial. Motion overruled. The defendant then moved in arrest of judgment, upon the ground that the indictment omitted the words "cultivated for food or market," which he insisted constituted a material part of the offense. This was overruled, and judgment was pronounced, from which the defendant appealed to this court.

The first exception is based upon the rejection of the testimony of the defendant's wife to contradict the statement of the witness Carter. It has been well settled in this state since the case of State v. Patterson, that while the rule has...