State v. Eller
| Decision Date | 09 December 1889 |
| Parties | STATE v. ELLER et al. |
| Court | North Carolina Supreme Court |
Indictment for larceny and receiving, tried before ARMFIELD, Judge, and jury, at spring term, 1889, of Wautauga superior court. A true bill was returned against Sherman Brooks, Henry Eller Linville Eller, Henry Brooks, Coon Eller, and George Eller but only the last two were on trial. The charge was for larceny of coffee, the property of one S. V. Cox, and for receiving it, knowing it to have been stolen. It was in evidence that Cox's store had been broken open, and the coffee and other articles stolen. That, some of these articles having been found concealed in the woods near the store a few days after, a guard was posted on the road leading from the place of concealment, and that night five men came along the road from that direction, three of whom were carrying sacks of coffee. When halted, they dropped the coffee and ran, and witness testified that the coffee was that which had been stolen from Cox. One of the witnesses testified that he took two of the men to be Henry Eller and Sherman Brooks, and another was a tall man, as was Linville Eller. Another witness testified that he thought he identified Coon Eller, Henry Eller, and Sherman Brooks as three of the party who, when halted that night, dropped the stolen coffee and ran off. He could not identify the other two. It was in evidence that George Eller and Coon Eller these defendants, forfeited their bond for appearance at court, and when capiases were issued could not be found; that after Henry Eller was killed these defendants came in and surrendered themselves. Another witness testified that, two and a half or three years before Cox's store was robbed George Eller, Henry Eller, Linville Eller, and himself had an agreement to break into Cox's store, but he left the state soon thereafter, without its being done. It was in evidence that George Eller and Coon Eller were single men, and lived with their father, and that Sherman Brooks and Linville Eller lived in their neighborhood; that Henry Eller, Linville Eller, Coon Eller, and Jacob Eller were brothers. The same witness testified that Sherman Brooks was some kin to the defendants. To this last statement defendants excepted. Another witness testified that the day before the coffee was captured he saw Henry Eller and Sherman Brooks going in the direction of Cox's store, and in a mile and a half of it, one having a sack and the other a rope. To this evidence defendants excepted. Another witness testified that on the night the coffee was captured he was along, and recognized Sherman Brooks, Henry Eller, and, he thought, Linville Eller. At the close of the evidence the defendants' counsel asked the court to instruct the jury that there was not sufficient evidence to justify a verdict of guilty. The court declined, and defendants excepted. The court charged the jury that they were sole judges of the weight of the evidence; that the acts of Henry Eller and Sherman Brooks were not to be taken as evidence against Coon Eller, but might be considered with reference to the guilt or innocence of George, if the jury believe the testimony as to the former agreement between George Eller and others to rob Cox's store; otherwise not. To this instruction defendants excepted. Verdict of guilty, judgment, and defendants appealed.
Evidence that defendant was one of several who were found carrying the stolen goods at night along the road, a few days after the larceny; that the party, when stopped, dropped the goods, and ran; that defendant, after arrest, forfeited his bond, and evaded rearrest, till one of those who were with him carrying the goods, had been killed, and then surrendered himself; that he was a brother of two of the party seen with the goods, and a neighbor of the...
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