State v. Capps
| Citation | 71 N.C. 93 |
| Parties | STATE v. WILLIAM CAPPS. |
| Decision Date | 30 June 1874 |
| Court | United States State Supreme Court of North Carolina |
Where property is charged in an indictment for larceny as belonging to A and another and it is proved on the trial to be the property of A and B, a firm well known in the community, the apparent variance is cured by the Act of Assembly, Bat. Rev. chap. 33, sec. 65.
When written orders are introduced on a trial as corroborating evidence, such orders need not be proved, and it makes no difference whether the witness speaking of them, and for whose benefit the orders were drawn, could read and write or not.
( State v. Harper, 64 N. C. Rep. 129, cited and commented on.)
INDICTMENT for larceny, with a count for receiving stolen goods, tried before his Honor, Judge Logan, at the Spring Term, 1874, of the Superior Court of MECKLENBURG county.
The defendant was indicted with two others (not on trial) for stealing ten kegs of gunpowder from W. W. Grier and another, and in another count for receiving ten kegs of gunpowder, the property of W. W. Grier and another, knowing the same to have been stolen.
For the State, one Tom Caldwell swore that he was with the defendant, aiding and assisting him, when he stole the powder, and that he, the defendant, was to give him one dollar per keg for his assistance. The defendant paid him in cash five dollars, and gave him an order on the store of Elias & Cohen for a pair of boots in payment of the remainder. Defendant objected to the speaking of this order without it was produced. One Bethune, a clerk in the store of Elias & Cohen, swore that he did have an order from the defendant for a pair of boots to Tom Caldwell, but that he had either lost or mislaid it, as he could not find it in the place or on the file, where such orders were usually kept. Defendant again objected, insisting that the loss of the paper was not sufficiently proved. The State then examined the magistrate before whom the preliminary investigation took place, who stated that the order for the boots was produced before him and duly proved. Defendant objected to this evidence, and the Court ruled that the objection was well taken. In the argument the Solicitor spoke of this order being duly proved, when it was objected by defendant. His Honor did not interfere with the comments of the Solicitor nor with the reading of the order.
It was further in evidence that one Henry Caldwell purchased of the defendant a keg of powder, of the brand and mark described by the owner of that alleged to be stolen. That the defendant gave him an order on one Turner for the powder. The speaking of this order being objected to, a paper was shown to the witness, who being unable to read, could not identify it. A witness was called who swore that the writing of the paper resembled the defendant's, but that he could not say for certain that it was. No further evidence was offered on this point, and the paper was not given to the jury as evidence, but was read by the prosecuting officer and commented on as the order of defendant. To this argument the defendant objected, asking the Court to stop it, but his Honor declined.
The State having sworn and tendered several...
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State v. Gallimore, 421
...prisoner being held therein. The Court cited as authority for holding the count sufficient: Revisal § 3250 (now G.S. § 15--148); State v. Capps, 71 N.C. 93, 96, and State v. Hill, 79 N.C. 656, In Capps, the defendant was indicted for the larceny of ten kegs of gun powder, the property of W.......
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State v. Doran
...in the world, instead of averring that it was the property of A. and another, (who was shown by the proof to be his partner.) State v. Capps, 71 N. C. 93; State v. Ha-per, 64 N. C. 130. But upon the maxim, cessante ratione cessat et ipsa lex, the better rule seems now to be that "or" is onl......
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State v. Van Doran
...... to have been stolen, in "A. or another," giving the. prosecutor the opportunity to sustain the charge by proving. the property in any human being in the world, instead of. averring that it was the property of A. and another, (who was. shown by the proof to be his partner) State v. Capps, 71 N.C. 93; state v. Harper, 64 N.C. 130. But. upon the maxim, cessante ratione cessat et ipsa lex v. cessante ratione cessat et ipsa lex, the better rule seems. now to be that "or" is only fatal when the use of. it renders the statement of the offense uncertain, and not so. when one term is ......
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