State v. Wilson

• Decision Date: 04 December 1918
• Docket Number: (No. 499.)
• Citation: 97 S.E. 496
• Court: North Carolina Supreme Court
• Parties: STATE. v. WILSON.

97 S.E. 496

STATE.

v.WILSON.

(No. 499.)

Supreme Court of North Carolina.

Dec. 4, 1918.

Appeal from Superior Court, Yadkin County; Cline, Judge.

Rube Wilson was convicted of larceny and receiving stolen goods, and he appeals. No error.

A quantity of goods was stolen from the Gilmer Bros. Company of Winston-Salem, during the early spring of this year. Among the porters who worked at the store were Jim Houser and Hurley Houser, who lived in Yadkinville. The stealing had been going on for some months. Mr. Gilmer, the secretary-treasurer of the company, went with the officers to Yadkinville a Sunday later, provided themselves with search warrants, and found goods of the value of $500 or $600, which Mr. Gilmer identified as the property of his company. Among other houses, in which they found a quantity of goods was that of Sant Houser, the brother of Jim, the father of Hurley, and the father-in-law of the defendant, Rube Wilson. The defendant himself lived in a small one-room house in the same yard and about 40 feet from the house of Sant. In the defendant's house, they found $50 or $60 worth of goods, which Mr. Gilmer identified as coming from the store of his company. Rube Wilson's defense was that these goods were given to his wife by her brother, Hurley Houser, in his absence, and he had no reason to suspect that they were stolen; or that they were given to her by her brother.

The following circumstances were relied upon by the state, as showing the guilty, knowledge of the defendant:

(1) When told by the witness Thompson that, if he knew of any of the goods being in his house, he had better tell about it, and not conceal it, he replied that he would not try to conceal any stolen goods; but, if he knew of any, he would tell the officers at once. He then turned off and went in his house.

(2) Some 10 or 15 minutes afterwards, the officers found most of the goods he is charged with receiving in the attic of his house, while he had concealed upon his person a silk shirt waist identified by Mr. Gilmer as the property of his company.

(3) The defendant's admission that he placed the goods in the attic, because he wanted to hide them and he did not want to get in trouble.

All these and other circumstances in the case were submitted to the jury, and they found the defendant guilty of receiving the stolen goods.

Verdict of guilty and judgment thereon. Defendant appealed.

Benbow, Hall & Benbow and A. E. Holton, all of Winston-Salem, for appellant.

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

WALKER, J. (after stating the facts as above). [1, 2] The defendant's counsel, in their brief, do not insist on their exceptionto the refusal of the court to nonsuit the state upon the evidence. This exception, then, will be taken as waived; but, there being some evidence of guilt, the refusal to nonsuit was proper. State v. Carlson, 171 N. C. 818, 89 S. E. 30.

We will now consider the assignments of error, in the order of their statement in the record:

First. The defendant objected to the following testimony of the witness Thompson:

"Rube denied any knowledge of this property until we caught the other parties, and Hurley Houser said he got the goods at Gilmer Bros. Company, and turned over a good deal of it to his folks. It was in Winston that Hurley said that. Hurley said that he had given the coat to Rube's little boy and the waist to Rube's wife; that is, the waist we got out from under Rube's jacket. Rube acknowledged that was the way it come. My recollection is that Rube said that he threw these articles up in the attic because he did not want to get in trouble, to hide them while we were searching Sant's house."

The ground of objection was that this, though said in defendant's presence, did not call for a reply from defendant, and so could not be taken as an admission; he standing silent. This is a misapprehension of what occurred. The defendant did not remain silent, as the clause quoted above shows:

"Rube acknowledged that was the way it come."

The latter part of the testimony was clearly competent, and, even if the first part of it is incompetent, the objection must fail, as it was taken to the whole of it. State v. Ledford, 133 N. C. 722, 45 S. E. 944; Phillips v. Land Co., 174 N. C. 542, 545, 94 S. E. 12, and cases cited. Besides, the last part of the evidence is what the defendant attempted to prove himself, as appears in the case. In any view, therefore, it was harmless, if there was any error. There was no doubt that Hurley Houser stole the goods at Winston from Gilmer Bros. Company, and the only question was whether defendant received them with knowledge that they were stolen. The defendant is restricted to the particular ground of objection stated in the court below, which is clearly untenable. Bridgers v. Bridgers, 69 N. C. 451; Gidney v. Moore, 86 N. C. 485; Ludwlck v. Penny, 158 N. C. 104, 73 S. E. 228. It was held in the Bridgers Case that—

"A party objecting to the introduction of evidence must state with certainty the points excepted to; and, if the ground stated for such objection be untenable, it is error to reject the evidence, though inadmissible if properly objected to."

And in Gidney v. Moore, 86 N. C. 485:

"A general objection to obnoxious evidence will be sustained, if upon any ground the evidence should be rejected; but where the ground of an exception can be inferred from the record, another cannot be assigned here—the ground of an exception being a part...