State v. King

• Decision Date: 31 January 1881
• Citation: 84 N.C. 737
• Court: North Carolina Supreme Court
• Parties: STATE v. JAMES G. KING.

84 N.C. 737

STATE

v.JAMES G. KING.

Supreme Court of North Carolina.

January Term, 1881.

INDICTMENT for a misdemeanor tried at Fall Term, 1879, of STANLY Superior Court, before Buxton, J.

The defendant was charged with a violation of section 56, chapter 32 of Battle's Revisal, in mismarking a hog. The case originated in Union county and was removed to Stanly for trial. The indictment contained three counts; (1) for altering the mark of one hog, the property of C. L. Helms; (2) for defacing the mark of one hog, the property of said Helms; and (3) for mismarking one hog, the property of said Helms.

The defendant moved to quash the indictment for misjoinder of counts for distinct and separate offences. Motion overruled, and defendant excepted. He then moved to require the solicitor to elect upon which count to try the defendant, and the judge refused to require the solicitor to do so until after the evidence was gone through, and at the close of the evidence he elected to rely on the third count, being the one for mismarking.

The prosecutor, Helms, during his examination was asked if he had any mark for his hogs, and if so, what was it. The defendant's counsel interposed and asked if his mark had been recorded, and on the witness' answering, “no,” objected to the evidence on the ground that the mark could only be proved by the record-- citing Bat. Rev., ch. 16, § 1. His Honor overruled the objection and the witness proceeded to describe his mark, to which the defendant excepted.

The solicitor asked the witness if he had ever heard the defendant say what was his mark. The question was objected to on the same ground as the preceding exception, but it was overruled by the court and the testimony admitted. There was no conflict of evidence as to the respective marks of the prosecutor and defendant.

The state introduced evidence tending to show that the prosecutor was the owner in October, 1877, of an unmarked sow eighteen months old, of a very wild nature, which had made her bed in the woods and had had a litter of five pigs, then unknown to the prosecutor, and that defendant had put the sow and pigs in his mark; that in December following, on one Saturday afternoon, the prosecutor, defendant, and one Richardson and one Tindell met at a spot some three hundred and fifty yards from the bed of the sow for he purpose of hunting her, the location of the bed being tunknown to all but the defendant. The prosecutor testified that while at the place of meeting, the defendant proposed to him to go down the branch in search of the sow. They went down the branch and did not find her; but on the next Monday morning on their way to the place of meeting, by agreement, for another hunt, they found the bed. The prosecutor asked one of the witnesses in what direction from the bed did the prosecutor and defendant go in search of the hog on the Saturday before, when they started down the branch together. The question was objected to by defendant's counsel, as calculated to prejudice the jury. Objection overruled, and the witness stated, they went in a direction nearly opposite to the hog bed. Defendant excepted.

Tindell was then introduced as a witness for the state, after the defendant had closed his examination, and asked as to the conversation between the prosecutor and defendant when they met in an old field on the said Monday morning to hunt for the hog, according to appointment. This evidence was objected to on the ground that it was not in reply or responsive to any evidence offered by the defendant. Objection overruled, and the witness testified that defendant offered to call up the hog, and the prosecutor told him if he would do so and show the hog, the difficulty would be settled; but the defendant refused to call it up.

The jury rendered a verdict of guilty, motion in...