The court correctly told the jury that "if there was the guilty intent previously formed by the defendant to steal certain property, and he carried out such design previously formed, he is (782) guilty, notwithstanding the owner of the property was advised of the intended larceny, appointed agents to watch him and could have prevented the theft, but did not do so, and allowed him to commit the theft, with a view of having him subsequently punished." It was error, however, further to tell them that if there was the previous intent to steal, the defendant would be guilty, notwithstanding the owner's agent had told a servant to go to the defendant's house and persuade him to come and steal the sack. Dodd v. Hamilton, 4 N.C. 471; S. v. Jernagan, 4 N.C. 483. It was also error to refuse the fifth prayer for instruction, "That larceny cannot be committed when the owner, through his agent, consents to the taking and asportation, though such consent was given for the purpose of apprehending the felon," and likewise the sixth prayer, "That larceny cannot be committed unless the thing be
taken against the will of the owner." The object of the law is to prevent larceny by punishing it, not to procure the commission of a larceny that the defendant may be punished. The evidence for the State was that the owner's agent (Wilson), having information of an intended theft of cotton by the defendants, watched the cotton house Monday and Tuesday nights without anyone coming. That he returned Wednesday night and watched till very late, and, no one coming, he filled up a couple of sacks with cotton, and leaving one of the sacks in the cotton house, he gave the other sack to one Julia Harris, and told her to go to the defendant's house, three hundred yards distant, and give it to him and tell him that he could get some more cotton. Julia did as directed, and in a little while she returned with the defendant, who entered the cotton house, took the other sack of cotton upon his shoulder and carried it home. The court should have sustained the demurrer to the evidence. It is not necessary to consider the evidence as to the wife, for the election (783) of this transaction discards the consideration of the evidence as to the taking by her Thursday night. It is also unnecessary to consider the other points raised. We may note, however, that if, as it would seem from the case, the judge, notwithstanding the prayer at the close of the evidence to put his charge in writing, "also fully explained and instructed the jury as to the application of the propositions of law laid down in his written charge and instructions given as to the different phases of the evidence in the case, and pointed out to the jury the grounds upon which the defendants rested their defense, and explained such phases of the case arising from the evidence introduced by the State and the defendants," there was manifest error. When there is a prayer to put the charge in writing (The Code, sec. 414), all the instructions as to the law must be reduced to writing (though not the recapitulation of the evidence).Dupree v. Insurance Co., 92 N.C. 417; Lowe v. Elliott, 107 N.C. 718. If this were not so, section 414 would be nugatory. We can only incidentally refer to the point and not declare error in that regard, as there is no exception for a refusal or failure to put the charge in writing. Taylor v.Plummer, 105 N.C. 54; Lowe v. Elliott, supra.
The exception "for refusal of prayers for instructions" does not embrace a refusal or failure to grant a prayer to put the charge in writing. If the proper exception on that ground had been made, the case should, and doubtless would, have contained the written charge, and, if any oral charge had been given, it should have been set forth that this Court might see that it was mere repetition of the written charge. It is only out of deference to the authority of Currie v. Clark, 90 N.C. 355, that the Court will permit even that, and will not extend the exception. It
may be noted that the headnote in S. v. Young, 111 N.C. 715, goes beyond the opinion of the Court.
When the demurrer to evidence is overruled, the defendant should not introduce evidence. Starkie on Ev., 797-8; 2 Tidd Pr., 865-6; Whar. Cr. Pl. and Pr. (9 Ed.), secs. 407, 706; Hutchins v. (784)Commissioners, 82 Pa. St., 472.
If the defendant has evidence which he intends to introduce, he should take advantage of the failure of plaintiff to make out a case by a prayer to instruct the jury after all the evidence is in.
In failing to sustain the demurrer to the evidence, and also for refusing to instruct the jury that there was no evidence to go to them, there was error. But this does not necessarily dispose of the case. Nonconstat that the State may not, in some cases, produce more evidence on the next trial. S. v. Rhodes, 112 N.C. 857.
Error.
Cited: S. v. Groves, 119 N.C. 824; S. v. Hagan, 131 N.C. 803;Prevatt v. Harrelson, 132 N.C. 253; Hollingsworth v. Skelding, 142 N.C. 255;S. v. Gaffney, 157 N.C. 626.