State v. White

• Court: North Carolina Supreme Court
• Writing for the Court: MERRIMON
• Citation: State v. White, 89 N.C. 462 (N.C. 1883)
• Decision Date: 31 October 1883
• Parties: STATE v. DANIEL WHITE.

89 N.C. 462

STATE

v.DANIEL WHITE.

Supreme Court of North Carolina.

October Term, 1883.

OPINION TEXT STARTS HERE

INDICTMENT for larceny tried at Spring Term, 1883, of BERTIE Superior Court, before Philips, J.

The defendant is charged with stealing a hog, the property of some person to the jurors unknown.

The substance of the testimony is as follows: One Keter testified that the defendant lived within a mile and a half of him, and that he knew the defendant's hogs. In February, preceding the trial, defendant asked witness if he had accused defendant of stealing hogs, and one Bailey, who was present, said to defendant: “Haven't you sold some pork?” “Not a pound,” replied the defendant. “Haven't you sold some salted meat?” “Not a pound.” Bailey then said: “I know you have sold some.” And defendant replied: “Yes, I sold one shoat to Ward, and I can prove that it weighed 120 pounds.” Ward came up, and, upon being asked if he had bought pork of defendant, replied: “Yes, 120 pounds.”

Miles Bailey testified that defendant told him he had only two shoats to make his meat; that witness' hogs had strayed off, and defendant said his had strayed off also; the defendant had a sow and pigs which he said he was raising on shares, and also a sow and two shoats which witness said would not weigh over 60 pounds gross; that the defendant said he had been accused of stealing, denied having sold any pork, but in the course of conversation confessed that he had sold one shoat to Ward, weighing 120 pounds, and Ward, who was present, said he bought the same of defendant; that defendant said he had killed six hogs, but the only meat he had sold was to Ward. Witness testified he had lost his hogs.

George Smith testified that he lives in one mile of the defendant, and that he also lost hogs, but could not say what became of them.

M. F. Parker testified that defendant sold him two dressed hogs, one of them with its head off, and the two weighed 182 pounds; that they were brought to him in a cart, and were covered up with a cloth.

These transactions took place in the fall and winter, preceding the finding of the indictment. The defendant introduced no testimony.

The defendant's counsel requested the court to charge the jury that the evidence was not sufficient to warrant a conviction. This the court declined to do, but submitted the whole testimony, with instructions to the jury to determine its weight.

The defendant filed the following exceptions:

1. For that the court declined to charge the jury that the evidence was not sufficient to convict.

2. Because the court instructed the jury that they might consider the facts that the witnesses had lost hogs in the neighborhood about the time the defendant sold two hogs to Parker.

There was a verdict of guilty; judgment; appeal by the defendant.

Attorney-General, for the State .

No counsel for defendant.

MERRIMON, J.

It is well settled law, that the court must decide what is evidence, and whether there is any evidence to be submitted to the jury, pertinent to an issue submitted to them. It is as well settled, that if there is evidence to be submitted, the jury must determine its weight and effect. This, however, does not imply that the court must submit a scintilla--very slight evidence; on the contrary, it must be such as, in the judgment of the court, would reasonably warrant the jury in finding a verdict upon the issue submitted, affirmatively or negatively, accordingly as they might view it in one light or another, and give it more or less weight, or none at all. In a case like the present one, the evidence ought...