State v. Powell

• Court: North Carolina Supreme Court
• Writing for the Court: SHEPHERD, J.
• Citation: State v. Powell, 103 N.C. 424, 9 S.E. 627 (N.C. 1889)
• Decision Date: 06 May 1889
• Parties: STATE v. POWELL.

9 S.E. 627

103 N.C. 424

STATE v. POWELL.

Supreme Court of North Carolina

May 6, 1889

Appeal from superior court, Northampton county; MACRAE, Judge.

Defendant snatched up money belonging to the prosecutor, and, when it was demanded, replied, "You ain't going to get this money." His companion held the prosecutor when he attempted to retake the money. When defendant started away with it, and the prosecutor started in pursuit, defendant put his hand to his breast, and threatened to kill him if he pursued. Held sufficient evidence of felonious intent to submit to the jury on an indictment for larceny.

Robert Powell appeals from a conviction for larceny.

The Attorney General, for the State.

SHEPHERD J.

The defendant contends that he is not guilty, because "there was no artifice to conceal the fact that he had gotten the money in his possession; that there was no effort to conceal the fact of the taking; and that the prosecutor knew who had his money, and against whom to bring his action." For these positions he relies upon State v. Deal, 64 N.C. 270, and State v. Sowls, Phil. (N. C.) 157. The proposition is that there can be no felonious intent where the taking is done openly, and there is no effort to conceal.

State v. Deal, supra, is a leading case in this state upon the subject of felonious intent in larceny, and, while the conclusion reached by the court is generally regarded as correct, much that is said in the opinion has been questioned, and the doubts which have arisen have been greatly strengthened by the forcible dissenting opinion of Mr. Justice RODMAN. It will be observed that, in addition to there being no effort to conceal in that case, there was another element, which was sufficient to have entitled the defendant to a new trial. That was, as the learned Chief Justice says, "a seeming excuse for the artifice by which he [Deal] got possession of the note." "The defendant alleged that the title to the land for which he had executed the note was not good, for that it was subject to a dower right, and, being dissatisfied with this state of things, he resorted to a trick to get hold of the note, for the purpose of canceling it." The trial judge did not submit this view to the jury, and the defendant was thus deprived of this "seeming excuse" for his conduct. We think that this feature of the case had much to do with the decision of the court, and in this we are sustained by Wharton's Criminal Law, (volume 2, § 1787,) where the author, speaking of State v. Deal, says: "It was held that this was not larceny, larceny implying stealth, and this being a forcible taking, under color of right." We shall not attempt to "run and mark" the shadowy line between trespass and larceny, but we cannot yield our assent to the inference drawn by the defendant, from the language of the opinion, that there can be no case of larceny unless there is an effort to conceal on the part of the offender. The language of Judge HENDERSON, quoted in the opinion, has never passed into judicial decision, and we have been unable to find in our edition of Foster (cited in State v. Sowls supra) anything in support of the doctrine that the taking must be done in such "a manner as to show an intent to defraud the owner by concealing from him who took it, so that he shall not know what has become of his property, and against whom to bring his action to recover it." As far as our investigations have extended, we have found no such criterion laid down in any of the books. True, Mr. Wharton in his Criminal Law, (volume 3, 1876,) states that, where the taking is openly done, it is but a trespass; and perhaps similar expressions may be found in other modern works; but upon reference to the notes, it will be seen that they are based upon Hale's Pleas of the Crown, 509, where it is said that, if the taking is done openly, it "carries with it an evidence only of a trespass." But these authors fail to add the following language of Lord Hale, used in the same connection: "But, in cases of larceny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to prescribe all the circumstances evidencing a felonious intent, or the contrary; but the same must be left to the due and attentive consideration of the judge and jury, wherein the best rule is, in dubiis, rather to incline to acquittal than conviction." "From which it seems," says Judge RODMAN, "that Lord Hale did not think an open manner of taking inconsistent with larceny, but only a circumstance from which the jury might infer the absence of felonious intent." We fully concur with the chief justice and Judge HENDERSON that a prominent feature of larceny is "that the act be done in a way showing an intention to evade the law,--that is, not to let the owner know who took his property;" but we cannot agree that this is the only way the felonious intent may be manifested in larceny, any more than that concealment, as the chief justice suggests, is necessary in robbery. It is true, as Blackstone says, (4 Comm. 232,) that "the ordinary discovery of a felonious intent is where the party doth it clandestinely, or, being charged with the fact, denies it but this is by no means the only criterion of criminality, for, in cases that may amount to larceny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent or animum furandi; wherefore they must be left to the due and attentive consideration of the court and jury." To the same effect is that...