194 S.E. 94 | N.C. | 1937
The defendant was tried on a bill of indictment charging him with the larceny of (1) a Gruen wrist watch; (2) $63.75 in money, the property of one Tom Allen. There were counts also for receiving said property knowing same to have been stolen. The defendant pleaded not guilty to the indictment.
Tom Allen, the prosecuting witness, testified, in part, in regard to the watch: "He was dressed. About an hour after we arrived he informed me he was sick. He had gone to bed. I had gone to bed. I had a watch. I had taken the watch off to wind it and I laid it on my dresser and he wanted to try it on that night. It was a wrist watch, and he said he would give it back the next morning. He did not give it back next morning. I got it back Wednesday afternoon. I was in my room when he said he wanted to try it on, and he went to bed in the same room. It was something like an hour after we got home when he left, maybe and hour and a half. I think I had been dozing and he was sitting on the side of the bed and I asked what was the matter, and he said he was sick. He dressed after that. . . . Q. When did you *632 miss the watch. Ans.: I let him put the watch on that night. I did not tell him he could not take it away. Q. Did you know he was taking it away? Ans.: I never thought about it at that time. Yes, I knowed he was taking it because he put it on. I did not see him have it when he left, I just know he put it on. I did not see him have it when he left, I just know he put it on when he went to bed. . . . In consequence of some call I went there, to Archdale. Yes, he gave me the watch then. He had it. (Cross-examination): I let him have the watch myself when I taken it off to wind it; he said he would give it back to me the next morning. Yes, I let him have it, and he said he would give it back to me next morning. . . . Yes, he came out to the car at the service station there and gave me my watch back."
The defendant testified, in part: "Mr. Allen was not asleep when I got up the first time; he had been asleep. I had been in bed before I got up, not over thirty minutes. Before that he gave me the watch, took off the watch, and I told him to let me look at it, and he handed it to me and I tried it on my arm. I had been planning on buying me one and started to take the watch off and he said, `Just give it back to me next morning.' So I left that night with the watch on my arm and forgot about it. It did not realize I had the watch on until after I left and did not want to go back then, so I called him up on Monday and he came down and I gave him the watch back." On cross-examination the defendant admitted that he had been charged and convicted on some three other offenses.
The jury found defendant guilty of larceny of the watch, and the court below pronounced judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be considered in the opinion. From the finding of the jury there was an acquittal of the defendant on the charge of larceny of the $63.75 in money.
In S. v. Fisher,
At the close of the evidence for the State, and at the close of all the evidence, the defendant made motions in the court below for judgment as of nonsuit. C. S., 4643. The court below overruled the motions, and in this we think there was error.
We see no evidence that defendant obtained or concealed possession of the watch by any artifice, trick, connivance, or fraud. It may be wise to quote fully from Pearson, C. J., on the subject of larceny in S. v. Deal,
In S. v. Kirkland,
In S. v. Holder,
The prosecuting witness' testimony as above set forth was to the effect that he let defendant have the watch, knew he had it, and defendant promised to return it the next morning, and the watch was returned within a few days. The evidence negatives a felonious intent and was not sufficient to have been submitted to the jury. All the elements of larceny must be established by sufficient competent evidence. Evidence that raises a mere suspicion, conjecture, and possibility is insufficient foundation for a verdict and should not be left to a jury.
For the reasons given, the judgment of the court below is
Reversed.