State v. Green

• Decision Date: 30 June 1879
• Citation: 81 N.C. 560
• Court: North Carolina Supreme Court
• Parties: STATE v. JAMES GREEN.

81 N.C. 560

STATE

v.JAMES GREEN.

Supreme Court of North Carolina.

June Term, 1879.

OPINION TEXT STARTS HERE

INDICTMENT for Larceny, tried at Spring Term, 1879, of PITT Superior Court, before Seymour, J.

The evidence was that the defendant who was in the employ of the prosecuting witness took the key of the witness' safe from his pocket one morning before the witness had dressed, and went to his office, unlocked the safe, took therefrom a drawer containing money, completely removing the same from the safe, and was handling the money when the witness detected him; but the money was not removed from the drawer. Thereupon the defendant's counsel requested the court to charge the jury that there was no evidence of an asportavit. The court declined, but instructed the jury that if the defendant removed the drawer from the safe with the felonious intent to steal the money in such drawer, he was guilty. Defendant excepted. Verdict of guilty, judgment, appeal by defendant.

Attorney General, for the State .

No counsel in this court for defendant.

SMITH, C. J.

The defendant has been twice convicted under an indictment containing two counts, one for the larceny of one dollar in money, and the other for feloniously receiving the like sum, once in the inferior, and again on his appeal in the superior court of Pitt county. The judgment in each court was the same, that the defendant be confined in the state prison for three years.

The only exception taken and presented in the appeal is to the refusal of the court to charge that the evidence failed to prove such asportation of the money as is necessary to constitute larceny.

We think the judge was correct in declining to give the instruction. “A bare removal from the place in which the thief found the goods, though he does not make off with them,” says Mr. Justice BLACKSTONE, defining an element in larceny, “is a sufficient asportation or carrying away.” 4 Blackstone Com., 231.

Accordingly it has been held that where one broke open a chest in the dwelling house of another, nobody being there, and took out the goods and laid them on the floor of the same room, and is then apprehended, or where one drew out a book from the inside of the prosecutor's pocket, an inch above its top, and then, on a movement of the prosecutor's hands, let the book drop and it fell back into the pocket, or where a ear ring was separated from the ear of a lady in which it was worn, and it fell and lodged in the curls of her hair,--in all these...