State v. Shuford
| Decision Date | 20 April 1910 |
| Citation | 67 S.E. 923,152 N.C. 809 |
| Parties | STATE v. SHUFORD et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; Long, Judge.
Jake Shuford and another were convicted of larceny, and they appeal. Affirmed.
The rule of strict construction of a penal statute is subject to the rule of reasonable construction, having in view the legislative intent.
Clement & Clement and Whitehead Kluttz, for appellants.
Attorney General Bickett and G. L. Jones, for the State.
This was an indictment against the defendants for burglary in the second degree, and the allegation in the indictment is that they did break and enter the house of B. F. McDaniel, and did feloniously steal and carry away therefrom certain articles of personal property described in the indictment. The defendants were convicted of larceny and appealed to this court from the judgment of the court below upon exceptions and assignments of error stated in the record.
The first exception is to the statement of B. F. McDaniel, a witness for the state, as follows: "The parties had been in our bedroom." The defendants contended that this was a mere expression of opinion on the part of the witness, as it appeared that he had no knowledge of the fact. The statement is found in a mass of testimony, some of which is clearly competent, and to which the defendant entered a general objection. This would be sufficient to dispose of the exception, as the defendant should have pointed out the part of the evidence to which he objected. If the answer of a witness is blended with other testimony, which, or a part of which, is competent, and a general objection be taken to the whole, the objection fails, though a part of the testimony may be incompetent. This is a well-settled rule. But we do not think the testimony of the witness, to which, perhaps objection was intended to be taken, is incompetent. He did not refer to the defendants in the case, but intended to say that it was evident that from appearances somebody had entered the room during the night, and this more clearly appears from the statement which follows, that the house had been closed before his family had retired for the night. State v. Ellsworth, 130 N.C. 690, 41 S.E. 548.
The next exception upon which the defendants rely relates to the testimony of the justice of the peace, who stated that Oscar Hudson, who had also been indicted with the other two defendants for the same burglary, had testified in the trial of the case in the superior court substantially as he had in the justice's court before him, but this objection cannot be sustained, because the witness stated what the testimony of Hudson was in the justice's court. It was, of course the province of the jury to pass upon the question whether there was any discrepancy or conflict between the testimony of the witness Oscar Hudson before the magistrate and his testimony at the trial in the superior court, and it appears in this case that they had full opportunity to do this. The same question, as now presented, was raised in State v McLaughlin, 126 N.C. 1080, 35 S.E. 1037, in which the court held, it is true, that the bare statement of the justice that the testimony of the witness before him and before the superior court was the same was incompetent, but the court further said that it was competent for the justice to state what the witness had testified before him, in order that the jury might pass upon the question as to whether the testimony in both courts is substantially the same. The mere opinion of the witness, expressed in this case, did not prevent the jury from passing upon the disputed fact as to the correspondence of the testimony of the witness in the two courts. The judge might well have instructed the jury not to consider the opinion of the...
To continue reading
Request your trial