State v. Kiger

• Decision Date: 27 November 1894
• Citation: 115 N.C. 746,20 S.E. 456
• Court: North Carolina Supreme Court
• Parties: STATE . v. KIGER.

20 S.E. 456

115 N.C. 746

STATE .

v.KIGER.

Supreme Court of North Carolina.

Nov. 27, 1894.

Larceny—Evidence — Arguments of Counsel— New Trial.

1. In a prosecution for larceny of liquor, testimony as to marks upon the barrels containing the liquor is competent to prove Its identity.

2. It is not improper for the prosecuting counsel to comment on the fact that defendant had failed to introduce witnesses summoned by him, or to comment on the fact that defendant had failed to call his brother, though summoned by the state, to prove his innocence.

3. The refusal of a trial judge to set aside a verdict on the ground that there was no evidence to support it is not reviewable unless the point of no evidence was raised before the case was submitted to the jury.

Appeal from superior court, Forsyth county; Whitaker, Judge.

Samuel L. Kiger was convicted of larceny, and appeals. Affirmed.

The state offered the following evidence: Asa Dunklns testified about the 16th of January, 1894, he had seven barrels of brandy stolen from his place In Yadkin county, about three miles beyond the Shallow Ford, on the Yadkin river. That the brandy was "blockade." He had it concealed near the house, in a piece of woods, part of it in a hole in the ground, about 22 miles from Winston. That the day before the brandy was stolen, about noon, he met defendant and one John Bolin about one mile from Winston, going towards the Shallow Ford in a two-horse wagon. That the brandy was taken that night. That the next day, when he missed the brandy, he instituted search, and found that two two-horse wagons had crossed the Shallow Ford, left the main road, which passed through the village of Huntsville, and turned off along a byroad through Conrad's plantation, stopped near where the brandy was concealed, and there were signs of the brandy having been rolled out to the wagons and loaded. That near the place, in Conrad's field, he saw where the team had started, and near by found a plow handle had been broken off of a plow. That he followed the track back to the main road at Shallow Ford, coming towards Winston, where other vehicles had obliterated the track. That the next day he came to Winston, procured a search warrant, and searched defendant's house, his brother Thomas Kiger's house, and found an empty barrel with a sourwood stopper, that he thought was his, in Thomas Kiger's house. That afterwards he searched the premises of Jack Kiger, a brother of defendant's, and Thomas Kiger, and found six barrels of his brandy concealed in a gully near Jack Kiger's house, covered up with pine trees, that had been cut across the gully, with prints showing that barrels had been rolled from Kiger's house through the old field pines. That Jack Kiger lived one-fourth of a mile from the Shallow Ford road, between Winston and Shallow Ford, about nine miles from Winston and three miles this side of Lewisville. That he knew the barrels by private marks upon them. They were his barrels, and were filled with peach and apple brandy, as his were. This evidence was objected to by defendant on the ground that the indictment did not describe the barrels. Exception overruled. (Exception 1.) Defendant excepted. Defendant Thomas Kiger and Thomas Bolin and William Bolin were indicted together, but the other three defendants had not been taken, and S. L. Kiger was alone in trial. William Bevil testified that the evening before the brandy was taken he saw defendant and John Bolin pass along the Shallow Ford road, going toward Shallow Ford, in a two-horse wagon. Sev-eral witnesses testified that all four of the defendants passed through Lewisville about 8 o'clock of the night the brandy was taken. Stopped at a store. Left the wagon in the road. Bought crackers and sardines, and had a bottle and took a drink, and left There was evidence that two wagons passed a house about 100 yards from Shallow Ford, coming towards Winston, about 1 or 2 o'clock at night, same night brandy was stolen. That two men were walking. The wagon appeared to be loaded, and was covered with sheets or quilts. That one of the parties walking called to the driver of the front wagon to hurry up; it was getting d——d late. A wagoner testified that two wagons appearing to be loaded passed his camp near Lewisville, on the Shallow Ford road, going towards Winston, about 2 o'clock, on the night of the theft, with four men, two driving and two walking behind with guns. Norman Whitman testified that he lived on the Shallow Ford road, between West Bend and Jack Kiger's, and about 12 miles from Winston. That about 4 o'clock the morning of the theft the defendant came to his door, woke him up and got a lantern, a hammer, and some nails, telling him he was from Davie county, and had broken a wagon, and wanted to mend it. That he saw him go out into the road where the wagon was standing. That he fixed it, and came back with the lantern and hammer. That the next day he went to the place where the wagon was, and saw where they had apparently been working on the wagon, and then picked up a piece of a plow handle, which he gave to Asa Dunkins. Dunkins testified that he took the piece of plow handle back to Conrad's field, near where his brandy was stolen, and fitted the broken handle together in the plow, and it was the piece which had been broken off and carried away. It was in evidence that all four of the defendants lived in the suburbs of Winston, but that John Bolin had worked for the prosecutor in Yadkin, and knew where he kept his "blockade" liquors, and helped to dry the corn. The defendant introduced no testimony. One of the counsel for the prosecutor, in addressing the jury, said the defendant had called 10 witnesses, and had them present himself, but that he had failed to show by any witness where he was that night. To this the defendant objected, and asked his honor not to allow the comment of counsel. His honor stated that counsel was about to get on dangerous grounds, but that he did not comment on what the defendant did, or did not do, but as to the other witnesses it...