State v. Jackson

• Decision Date: 21 March 1893
• Citation: 112 N.C. 861,17 S.E. 149
• Court: North Carolina Supreme Court
• Parties: STATE. v. JACKSON.

17 S.E. 149

112 N.C. 861

STATE.

v.JACKSON.

Supreme Court of North Carolina.

March 21, 1893.

Larceny—Instructions—New Trial —Remarks of Bystander.

1. Where, on a trial for the larceny of pigs, the court, at the request of defendant charges that the jury must be satisfied, beyond a reasonable doubt, that the pigs belonged to S., and that "the solicitor had proved by the testimony of S. and J. that the pigs were the property of S., " the latter part of the charge must be construed to mean that it was "in proof for the state, by the testimony" of such witnesses, that the pigs belonged to S., and is not objectionable as likely to be understood by the jury as meaning that the state had proved ownership of the pigs in S.

2. It is not ground for a new trial that before the jury was impaneled, but in their presence, during the argument of a motion for a continuance, a bystander remarked in open court that defendant's wife said she would not come because she would only help to get her husband in jail; it being nothing that took place on he trial.

3. Nor would it have been ground for a new trial if it had taken place during the trial, since the remark was not admitted in evidence, and since the presumption is that jurors are of sufficient intelligence to know that their verdicts must be based solely on evidence adduced on the trial, and the law laid down by the court.

4. A mere omission to charge is not error, unless a prayer is asked. Boon v. Murphy, 12 S. E. Rep. 1032, 108 N. C. 187, followed.

Motion to reinstate appeal. See same case, 16 S. E. Rep. 906.

CLARK, J. This was a motion to reinstate this appeal, dismissed heretofore at this term. By consent the case was argued on its merits, as well as on the motion, in order to avoid the possible necessity, if the motion were granted, of counsel returning here for another argument. We do not find it necessary to pass upon the other points, since, if the motion were granted, there is no merit in the grounds of the appeal itself. The appellant was defended by two able counsel below, and was convicted, by a jury to which he raised no objection, of the larceny of some pigs. There was some evidence tending to show that the pigs did not belong to Sam Powell, In whom the property was laid, but to his mother. The court gave a prayer for instruction asked by the defendant, —that the jury must be satisfied, beyond a reasonable doubt, that the pigs were the property of Sam Pewell at the time they were stolen. In this connection the court charged, among other things, that "the solicitor...