20 S.E. 722 | N.C. | 1894
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,
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,
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,
Error.
Cited: S. v. Groves,