State v. Perkins

• Decision Date: 04 November 1889
• Citation: 10 S.E. 175,104 N.C. 710
• Parties: STATE v. PERKINS et al.
• Court: North Carolina Supreme Court

10 S.E. 175

104 N.C. 710

STATE v. PERKINS et al.

Supreme Court of North Carolina

November 4, 1889

This was an indictment for larceny of a cow, the property of William Keel, tried at the March term, 1889, of the superior court of Pittcounty, before CONNOR, J. The prosecutor William Keel, testified that he lost four cows before the last of November of last year; that he last saw them about the second week in November, and missed them on Saturday before the fourth Sunday in November. He further testified as follows: "My cows were in the habit of grazing in some swamp land about a mile from my house. On missing my cattle I went over most of this swamp; not all of it. I found two places at which it appeared that cattle had been killed in the swamp, about a mile from my house, and one-fourth to one-half mile from the houses of the defendants." Samuel Page was introduced for the state, and testified as follows "On Friday of the second week of November, 1888, I started to a neighbor's house through the woods. I saw the defendants walking along. Langley was ahead of Perkins. I sat down on a log. Perkins walked off in a thick place. Langley walked a few steps, and shot down the dark red heifer with a white streak up her back. It was William Keel's heifer. The other cattle ran off. Langley went up to the cow and stooped down. I went back home. I saw the cow plainly. I was about fifty yards from her. My cow was with them. Mr Keel had forbidden me to go on his land; and when I first saw defendants I thought one of them was Mr. Keel, and stooped down on the log. I think it was about three-fourths of a mile from Mr. Keel's, and the time was about two hours by sun. I had not spoken to Mr. Keel for two years, in consequence of a misunderstanding with him. I talked about what I had seen at the log-rolling, and then Mr. Keel asked me about it. Perkins attacked me about it, and said: 'What sort of talk is that you had this morning? Don't handle my name. I will put balls in you. I shall not say anything about it if you don't.' This occurred a little better than two months after the shooting. The cow was not marked." William Keel, the prosecutor, being recalled, described an unmarked cow that he missed; color about that of the cow described by Page as shot. He testified further: "Page showed me about three weeks ago the place at which he said the cow was shot, after I had asked him about it. A man sitting on the log where Page said he sat could see another where he said that the defendants were standing. I found no intestines or sign of anything having been killed there." Moses King testified as follows: "I remember that D. A. Perkins sold me a cow with the ears cut off. It was in December, 1888. It was a brindled cow with some white on it. I could not say that she had a white streak down her back. There was another man with Perkins when he brought the beef." A great deal of testimony was offered in behalf of the defendants that, if believed by the jury, would have established an alibi for Perkins, and shown that the defendants were not guilty; but it is not material in deciding the questions raised by the exceptions in this case. The defendant's counsel requested the court to instruct the jury (1) that there was no evidence of an asportation; (2) that in criminal cases a case cannot be made out by inferences from testimony on the part of the defendants. The...