State v. Davenport

• Decision Date: 23 February 1893
• Citation: 17 S.E. 37,38 S.C. 348
• Parties: STATE. v. DAVENPORT et al.
• Court: South Carolina Supreme Court

17 S.E. 37

38 S.C. 348

STATE.

v.DAVENPORT et al.

Supreme Court of South Carolina.

Feb. 23, 1893.

Larceny—Evidence of Value — Instructions— Appeal.

1. Where on the issue as to whether the bale of cotton stolen was worth more than $20, a witness testified "that he did not know exactly what the bale of cotton was worth; about $30; maybe a little more, "—there was sufficient evidence that it was worth more than $20 to be submitted to the jury.

2. A charge in reference to circumstantial evidence "that the testimony must not only be consistent with the guilt of the person charged, but inconsistent with any other reasonable supposition, " though a slight departure from the words generally used, is not error of law.

3. Where counsel objects to the words in an instruction, he should request the trial court to charge as he desired.

4. An exception to the trial court's definition of a " 'reasonable doubt, ' setting forth that it failed to define what constitutes a reasonable doubt in a sufficiently clear and distinct manner." is too indefinite to be considered.

5. To constitute larceny it is not essential that the taking and carrying away of the property of another may be done with felonious intent: it being sufficient that the taking and carrying away be followed by a felonious appropriation, at which time the theft is complete.

G. In South Carolina, the refusal of a motion for a new trial upon the facts is not appealable to the supreme court.

Appeal from general sessions circuit court of Newberry county; Thomas B. Fraser, Judge.

Josh Davenport and Richard Davenport were convicted of grand larceny, and appeal. Affirmed.

M. A. Carlisle and Jones & Jones, for appellants.

O. L. Schumpert, for the State.

McGOWAN, J. The defendants were found guilty of grand larceny, —stealing one bale of cotton, alleged to be the property of a "ginnery firm, " composed of the defendant Richard Davenport and nine others, and alleged to be of the value of $20. They were sentenced to imprisonment in the state penitentiary for one year. A motion was made before the trial judge for a new trial on the ground of newly-discovered evidence, and errors of law charged by the presiding judge. These were overruled, and the defendants appeal to this court, upon the following grounds: "(1) Because the presiding judge erred in overruling the defendants' motion for a new trial, and in refusing to grant the same. (2) Because the presiding judge erred in charging the jury that the ignorantly helping to load the cotton in question and to carry it away by a member of the firm would not keep it from being larceny, because he was not right sure that a member of that ginnery firm might not have been guilty of larceny if be had taken the property from the common place where it was stored, and carried it away, and converted it fraudulently to his own use; thus confusing and leaving the minds of the jury In doubt as to the true import of the charge and the facts applicable thereto In carrying away and fraudulently converting the cotton to his own use by a member of the firm. (3) Because the presiding judge erred in charging that it was for the state to show the guilt of the defendants beyond a reasonable doubt, and in connection with said charge failed to define what constituted 'a reasonable doubt' In a sufficiently clear and distinct manner. (4) Because the presiding judge erred in charging that the rule In ref-ence to circumstantial evidence to be that the testimony must not only be consistent with the guilt of the defendants, but Inconsistent 'with any other reasonable supposition, ' and more especially In not making clear to the jury what was the meaning of an inconsistency with any other reasonable supposition. (5) Because the presiding judge erred in not charging the distinction between 'trespass' and 'larceny, ' when the whole drift of the facts raised the question as to whether...