The defendants below, Annie Bodee and! Fannie Bodee, were jointly indicted for stealing the coal of David A. Statesir, at Freehold, on January 31st, 1893. The substance of the accusation was that they had stolen the coal which dropped along the railroad track while being shoveled frоm a car into a wagon, and the defence was that the coal taken did not belong to thе complainant, and that coal so-dropped was abandoned by its owner, or, at leаst, the defendants believed it was. On the trial, in the Monmouth Sessions, exceptions were sealed on which the defendants now rely for the reversal of their conviction.
The first exception is to thе admission of testimony on the part of the state, that the complainant had, on the day befоre-the alleged larceny, caused Elizabeth Bodee, the daughter of one defendant and sister of the other, to be arrested for picking up his coal in the same locality. This testimony, сoupled as it was with evidence that the defendant Fannie, before-committing the alleged оffence, knew of Elizabeth’s arrest and: the reason for it, was competent to disprove thе existence of any belief on Fannie’s part that the complainant had abandoned his сoal. The ground on which the defendants based their objection to this testimony, that the transactiоn was-, covered by another indictment, manifestly could not detract from the force of the facts as notice to the defendants. State v. Raymond, 24 Vroom 260, 265.
Several exceptions were taken to the exсlusion of testimony offered by the defendants to show the practice of owners of coаl on the one hand and of poor people on the other, with regard to gathering up thе coal dropped in unloading cars. This testimony was legitimate on the questions whether the-ownеrs had abandoned such coal and whether others who-picked it up believed it was abandoned; and the exclusion of the testimony would have called for a reversal of this conviction had it not appeared on the trial, as an undisputed fact proven by the defendants themselves, that they knew the-complainant, before and at the time of the alleged larceny,»
On cross-examination of the constable who had arrested the defendants while engaged in gathering the coal, he was asked by defendants’ counsel, “Why did you not tаke the coal?” meaning the coal picked up by the defendants, so that it might be produced for identification at the trial. . The question being excluded, the defendants excepted. As the witness had already, on cross-examination, thrice answered the same question, the ruling was not errоr. Several other exceptions relate likewise to the repetition of questions, or to the mere order of proof, matters which are within the discretion of the trial court, and in this cаse no legal error was committed in its exercise. State v. Fox, 1 Dutcher 566; Trade Insurance Co. v. Barracliff, 16 Vroom 543.
Exceptions were also sealed оn the refusal of the court to charge according to requests presented by the defendаnts.
Most of these requests are so plainly erroneous that no comment upon them is deemed necessary.
One request was that the court should “define felonious intent in law.” The court refused furthеr than in' the charge it had defined it, and thereupon an exception was allowed. The charge was to the effect that the defendants, to be guilty, must have intended to convert the coal to their own use and make it their own property, without the owner’s consent— must have taken the сoal wrongfully and fraudulently, must have feloniously and fraudulently stolen the coal; that if they honestly believed they hаd a right to take it, the jury should acquit them; that a wrongful taking without felonious intent to steal would be a merе trespass. Some of these instructions were framed by the defendants’ counsel, and we think that altogether they indicated to the jury with reasonable plainness
The remarks of the court on the facts of the case were not erroneous.
The judgment must be affirmed.
For affirmance — The Chancellor, Depue, Dixon, Reed, Yan Sycicel, Bogert, Brown, Krueger, Smith. 9.
For reversal — Abbett, Sims. 2.