State v. Stancill

• Decision Date: 24 September 1919
• Docket Number: (No. 161.)
• Parties: STATE. v. STANCILL.
• Court: North Carolina Supreme Court

100 S.E. 241

STATE.
v.
STANCILL.

(No. 161.)

Supreme Court of North Carolina.

Sept. 24, 1919.

[100 S.E. 242]

Appeal from Superior Court, Pitt County; Daniels, Judge.

Garland Stancill was convicted of larceny and receiving property knowing it to have been stolen, and he appeals. No error.

The appellant, Garland Stancill, was jointly indicted with Ernest Perry and Raymond Stancill for the larceny of a lot of leaf tobacco of the value of $250, property of J. H. Little and others, and for receiving the same knowing it to have been stolen.

The evidence for the state tended to show that on Friday night, October 25, 1918, the defendants Ernest Perry and Garland Stancill took and carried away from the packhouse of J. H. Little 49 sticks of tobacco, the property of J. H. Little. They were driving the car of Raymond Stancill, and carried the tobacco thus stolen to the home of Raymond Stancill, where it was received by said Raymond. The testimony of the defendant's witnesses tended to show that both Garland and Raymond Stancill were not guilty. Both of them admitted the fact that Little's tobacco was carried to Raymond Stanclll's house by Perry and Garland Stancill, but both disclaim guilty knowledge.

Garland Stancill testified as follows:

"That he went with Perry, but had never been in that territory before, and Perry told him that he was going to his Uncle Bob Parker's after the tobacco; that Perry got out of the car and went up to the house, which he told witness was his uncle's house, came back, and stated to the witness that his uncle said go ahead and get the tobacco; that the witness had no idea that Perry was not telling the truth, and did not know that the tobacco was not Perry's tobacco."

At the trial Ernest Perry submitted to a verdict of guilty, and Raymond Stancill was acquitted, while Garland Stancill was convicted. From the judgment upon such conviction, Garland Stancill appealed to this court.

Albion Dunn, of Greenville, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above). It will be perceived from the foregoing statement that the issue in the case, and it was clear-cut and sharply drawn by the contention of both the Stancills, was, Did the Stancills know that Ernest Perry had stolen the tobacco? The errors assigned by the defendant relate to the competency of testimony. It appears that the three defendants were jointly indicted for stealing tobacco from J. F. Harris and others, and the evidence tends to show that they had formed a conspiracy to commit the theft, and this was the substance of the offense, as shown by the bill and the testimony. They had combined together, at least two of them—and there was evidence against the third, who was finally acquitted, —to do an unlawful act; that is, to steal from the prosecutors.

[100 S.E. 243]

The acts and declarations of those who were parties to the common design, in furtherance of the conspiracy, were competent. State v. Anderson. 92 N. C. 732; State v. Brady, 107 N. C. 822, 12 S. E. 325.

As the charge is not in the record, it must be presumed that the jury were correctly instructed as to the competency and relevancy of such evidence, and as to the circumstances under which it could be used by them, and as to what extent it could be considered.

The testimony of Ed. Marks, as to what the defendant Ernest Perry had said to him about the stealing of the tobacco by Garland Stancill and himself, was, standing by itself, an unsworn declaration of Ernest, incompetent against Garland: but he afterwards took the stand himself as a witness, and testified to the same facts.

If the statement by him was technically incompetent at the time of its introduction—and we will admit that it was so —the error was cured when Ernest Perry testified, substantially at least, to the same thing. (Albert v. Insurance Co., 122 N. C. 92, 30 S. E. 327, 65 Am. St. Rep. 693; Stroth-er v. Railroad Co., 123 N. C. 197, 31 S. E. 3S6; Beaman v. Ward, 132 N. C. 68, 43 S. E. 545; Summerlin v. Railroad Co., 133 N. C. 550, 45 S. E. S9S; Turner v. Commissioners, 127 N. C. 153. 37 S. E. 191); or, in any view. it was harmless error (see cases above). It was immaterial whether he made the statement to Ed. Marks or to any other person; the important fact was whether he made it at all.

[51 That he made it was merely corroborative of his own testimony, and, if defendant desired it to be confined to that single purpose, he should...