State v. Barrett

• Decision Date: 13 December 1898
• Citation: 31 S.E. 731,123 N.C. 753
• Parties: STATE v. BARRETT.
• Court: North Carolina Supreme Court

31 S.E. 731

123 N.C. 753

STATE v. BARRETT.

Supreme Court of North Carolina

December 13, 1898

Appeal from superior court, Union county; Greene, Judge.

Milton Barrett was convicted of larceny of an ax, and he appeals. Reversed.

On a trial for larceny of an ax the jury were instructed that, if they believed that prosecutor missed an ax, and that the ax shown to be in possession of accused was that of prosecutor they should find him guilty. Held erroneous, as it did not submit the question of felonious intent.

Armfield & Williams, for appellant.

The Attorney General, for the State.

FURCHES J.

This is an indictment for the larceny of an ax. The defendant had been in the employ of the prosecutor, who was a sawmill owner, and some time after the defendant left the prosecutor's employment he missed an ax. He testified that he did not know the ax was stolen, and, if it was stolen, he did not know that the defendant had stolen it. But there was evidence tending to show that some time after defendant left the prosecutor he went to work for one Shannon, and carried with him an ax; and there was evidence tending to show that the ax he carried with him to Shannon's was the ax that belonged to the prosecutor, and the one that he said he had lost. The defendant alleged, in explanation of his possession, that he traded for the ax, and got it from a strange negro from South Carolina. Upon this evidence the court charged the jury as follows: "If you believe from the evidence that the prosecutor missed an ax and if you should believe that the ax described by the witness Shannon, as in the possession of the defendant, was that ax of prosecutor, and believe all this beyond a reasonable doubt, you will bring in a verdict of guilty otherwise you will acquit the defendant." This was the whole charge, and the jury "brought in" a verdict of guilty. Defendant excepted, and appealed.

The charge is fatally defective, for the reason that it does not submit the question of felonious intent to the jury, which is one of the necessary ingredients of larceny. State v Coy, 119 N.C. 901, 26 S.E. 120, and cases there cited. For this error the defendant is entitled to a new trial. We have before called attention to the careless manner in which juries are often charged, "if you believe" such a fact or facts, when the charge should be, "if you find from the evidence" such to be the fact or facts. This manner of charging the jury...