Thе defendant was indicted for the larceny of three gallons of crude turpentine.
E. R. Register, for the State, testified that he owned certain turpentine boxes in Houston county; that the defendant worked some boxes adjoining witnеss’; that in June, 1903, the defendant and one Ed Ward were on his land; that when witness left for dinner he left some boxes near the line undipped; that when he returned, the boxes had been dipped, and that the gum dipped was worth one dollar аnd a half; that the defendant was near one box in the attitude of dipping, and witness asked him what he was doing and the dеfendant walked off. That the defendant in January of 1903, pointed out the line between the boxes and witness’ boxes, and that defendant was across the line that he pointed out. That the gum was in the box and the box was a part of thе trees and was cut into the trees that year. The witness was asked, “How do you hold the boxes?” He answered by a lеase and the lease is in writing. The defendant moved to exclude the answer on the ground, that there was higher evidеnce of the lease, and that it was incompetent, the court overruled the motion, and tlqe defendant excepted. \
It does not plainly appear from the bill of exceptions whether or not the above question was asked by the defendant or .solicitor. But it does appear from the bill that the witness had just testified that hе held by a written lease and had not the lease present, and on motion of the defendant the court excluded the evidence. • Then immediately follows in a separate paragraph in th!e bill,
“A bill of exceptions is construed most strongly against the party excepting, and if it will admit of two constructions, one of which will reverse, and the other support the judgment, the latter construction will be adopted.” — McGhee’s case,
Ward, a witness for the State, testified that he and the defendant dippеd some boxes where Register testified that defendant dipped; that it was just after dinner; that it was on Mr. Pope’s land аs witness understood the land AAdiich defendant Avas Avorking, and that he Avas hired by the defendant.
The defendant testified that he dipped the boxes, but that they Avere the boxes of Mr. Pope and he was working the boxes on halves. That he did in Januаry, 1903, point out the line to Register, and he was not over the line 'so pointed out. That he remained in the Avoods and dipped the remainder of the day, and that Register also remained and dipped.
One question presentеd by the affirmative charge, is, whether or not crude turpentine which had run from the body of the tree above into bоxes AAdiich were cut into the tree to serve as receptacles for the turpentine, was the subject оf larceny. This identical question has never been presented to this court for decision, but we are relieved of difficulty in the decision of it by the fact, that the question was considered by the Supreme Court of North Carolina, in thе case of The State v. William
If the defendant at the time he dipped the turpentine did it under the honest belief that it was within Pope’s land line, and that it belonged to Pope, then the evil intent which is an ingredient of larceny would have been laсking, but this question the court could not properly take away from the jury, and also the question whether or not from all the evidence, the talcing of the turpentine was done feloniously, notwithstanding the taking might have been openly done, was properly left for the jury to determine. — Bonner’s case,
Considering the view we have taken of the case, it is unnecessary to determine whether the charges of defendant were presented as an entirety.
No error having been found in the record, the judgment of conviction is affirmed.
Affirmed.