State v. Bishop

• Decision Date: 19 December 1887
• Citation: 4 S.E. 357,98 N.C. 773
• Court: North Carolina Supreme Court
• Parties: State v. Bishop.

4 S.E. 357

98 N.C. 773

State

v.Bishop.

Supreme Court of North Carolina.

December 19, 1887.

1. Criminals Law—Continuance—Affidavit as Evidence.

Defendant, on the trial of an indictment for larceny, on a motion for a continuance, offered an aftidavit, stating what ho expected to prove by absent witnesses. The state read the affidavit to the jury as a statement made by defendant. Held, that it was not error.

2. Same—Continuance—Affidavit—Impeachment.

The state, on the trial of defendant for larceny, introduced a witness to contradict the statement of defendant as to what he expected to prove by him, as contained in his affidavit tor continuance. Held, that the testimony was competent.

3. Same—Evidence—Voluntary Statements of Accused.

The state, on the trial of an indictment for larceny, can show voluntary statements of defendant, and that they are contradictory and untrue.¹

4. Larceny—Indictment—Description of Property.

In an indictment for larceny, "one United States pension check, on the assistant treasurer of the United States, for $24, of the value of $24, " suffciently describes a pension check drawn to the order of one K., and indorsed in blank.

5. Same—What Subject of—Pension Cheok.

A pension check on the United States treasury comes under Code N. C. § 1064, providing that a check or order for the payment of money shall be a subject of larceny.

6. Same—Indictment—Ownersuip.

In an indictment for larceny, the ownership of a check was sufficiently laid in persons who, it was proven, had it in their possession, custody, and control.

7. Same.

in the trial of an indictment for larceny, an instruction by the court that the ownership must bo proven in the parties as alleged in the indictment, and that, if it was shown that, while they were not really owners, they had possession of the property, it would be sufficient, was proper.

8. Same—Election or State.

An indictment for larceny charged the defendant with taking a check and some money, as one transaction, in a single count. Held, that the state was not compelled to elect as to the taking of which it would ask for conviction, but the jury could find him guilty of either or both.

Appeal from superior court, Transylvania county; Graves, Judge. Indictment for larceny. Defendant appealed.

The Attorney General, for the State. No appearance for defendant.

Davis, J. Indictment for larceny, tried before Graves, J., at spring term, 1887, of Transylvania superior court. The indictment charged the stealing of "fifty-five dollars in money, of: the value of fifty-five dollars, and one United States pension check, on the assistant treasurer of the United States, for twenty-four dollars, of the value of twenty-four dollars, in money, check and property of W. McGaha and W. P. McGaha, trading under the firm name of W. & W. P. McGaha." When the case was called for trial at spring term, I88G, the defendant made an affidavit for a continuance, in which he sets forth that "he stands indicted in this court for the larceny of $55 in money, and one pension cheek for $24, and that he cannot come safely to trial at this term of the court for the lack of the evidence of James Hunt, who, he is advised and believes, is a material witness for his defense; that afliant expects to prove by said witness that afiiant won said pension check from the prosecutor. Perry McGaha, at a game of cards on Sunday morning, the day before the alleged larceny; that said witness was present on said Saturday night, and heard affiant and said McGaha make an agreement, (setting it out;) and that afterwards he heard McGaha say affiant had won the check. The affiant states, as a further ground for continuance, the absence of Perry Robinson, a material witness, by whom he expects to prove "that a few days prior to the alleged offense he saw in the possession of affiant $55 in paper money, " etc.

On the trial the solicitor offered to read this affidavit to the jury, as a statement made by the defendant, to which defendant objected. The objection was overruled, the affidavit was read, and defendant excepted. The state then offered James Hunt, the witness named in the affidavit, to show that the statement contained therein, so far as it related to the game, was untrue. To this defendant objected, upon the ground that he had not been introduced as a witness, and the evidence tended to affect his character, and thereby put it in issue before the jury. The objection was overruled, and the witness Hunt testified, negativing the statements of the affidavit. The affidavit was admissible as a statement or declaration of the defendant, voluntarily made, in regard to the crime with which he was charged, and the falsity of which it was competent for the state to show. Every act of the defendant in respect to the alleged crime, and every circumstance calculated to throw light upon it and aid the jury in coming to a correct conclusion, is competent. State y. Case, 93 N. C. 545, and cases cited; Mason v. McCormick, 85 N. C. 226; State v. Lemon, 92 N. C. 790. This disposes of the first exception.

The state offered in evidence a paper purporting to be a pension check, an exact copy of which is set out in the case stated. It is dated September 17, 1885, and purports to be drawn by Robert S. Taylor, United States pension agent, on the assistant treasurer of the United States, New York, in favor of Mary E. Keith, for $24, and indorsed by the payee in blank. The introduction of this check was objected to, (1) because it was not sufficiently described in the indictment to identify it; (2) because it is not the subject of larceny under the provision of the Code, § 1064; and (3) because there is no evidence of property or ownership in the McGahas, or either of them, there being no indorsement to them by the payee.

It was in evidence that the check was identified as the one that had been in the possession of the prosecutor for Mary E....