The prisoner was indicted for stealing a negro woman named Harriet, the property of one Allen Bost. The indictment contains three counts. It is unnecessary to advert further to the second and third, as upon them the prisoner was acquitted. The first count is as follows: (148)
STATE OF NORTH CAROLINA — CABARRUS COUNTY.
Superior Court of Law, February Term, 1846.
The jurors for the State, upon their oath present, that James Gallimore, late of said county, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on 10 January, 1845, with force and arms, in the said county of Cabarrus, a certain female slave named Harriet, of the value of 50 shillings, and the property of Allen Bost of the said county of Cabarrus, feloniously did steal, take and carry away, contrary to the act of Assembly in such case made and provided, and against the peace and dignity of the State.
Upon this count the prisoner was convicted by the jury, and through his counsel moved for a new trial "because the jury had found him guilty without sufficient testimony." It is unnecessary here to state the
testimony given on the trial. We have no authority, as the case appears before us, to look into it. The question raised by the motion has been repeatedly decided in this Court. The Supreme Court is a court for the correction of errors in law committed by the court trying the cause, and not for the correction of those committed by the jury. If there is error here, it is of the latter kind, the only remedy for which rests in the sound discretion of the judge before whom the cause was tried, by granting a new trial. We cannot interfere, although in our opinion it might appear that injustice had been done. Long v. Gantly, 20 N.C. 457;Goodman v. Smith, 15 N.C. 459. The last case that came before this Court in which this question was raised was Reed v. Moore, 25 N.C. 313, in which the doctrine is laid down with so much clearness and precision that it is difficult to perceive how any mistake or misapprehension can still exist upon it. The language of the Court is: "It has been repeatedly declared that this Court cannot correct the errors of the jury in finding a verdict without or against evidence or against law, but must leave it to the judge who tried the case." To the same effect is Terrell v. Wiggins, 23 N.C. 173. For the reason assigned in the case, (149) it is not in the power of the Court to grant a venire de novo. But the counsel for the prisoner, not urging this point, claims a new trial upon the ground that it was the duty of the presiding judge to have instructed the jury that there was no evidence before them that the felony complained of was perpetrated within the county of Cabarrus. Every appeal to this Court from a trial at law consists of the record of the case below, properly so called, and the statement accompanying it. This statement is in the nature of a bill of exceptions, and is considered as containing the proceeding excepted to in the court below by the party complaining of them. It is our duty to examine the record of every case and to pronounce such judgment on it as the court below ought to have pronounced. Beyond the statement sent here, the Court cannot look without manifest injustice to the appellee; he would be surprised by objections taken here for the first time. It has, therefore, long been the established rule in this Court that only those points which were raised below can be heard here, unless they appear upon the record. We cannot listen to objections arising out of theore tenus incidents, as they are termed, of the trial. Of them no court can take notice but that before which they occurred. Everything found by the jury or ruled by the court must be held by us to be right, unless objected to at the trial. Hemphill v. Hemphill. 13 N.C. 294; Atkinson v. Clark,14 N.C. 174. We conclude this part of the case, then, in the language of the Court in Reed v. Moore, 25 N.C. 314: "We can do only with the errors of the judge. It is true, it is errorneous [erroneous] to submit an inquiry of fact to the jury to which there is no evidence in the case; but as to that, we have to say
in this case that the prisoner took no exception at the trial nor on his motion for a new trial, and, consequently, we cannot suppose the testimoney [testimony] to have been stated but with a view to the objections raised. The plaintiff's motion for a new trial was on the ground that the (150) verdict was against evidence and law, and not because the court left a point to them without evidence." And so here, the plaintiff moved for a new trial because the jury found the prisoner guilty without sufficient evidence, and not because a point was left to them without evidence. The latter was a question of law, to be decided by the court; the former one of fact, for the exclusive consideration of the jury.
The prisoner's case has, in our opinion, in no manner been prejudiced by the omission. We have looked carefully into the testimony, and think that there was evidence to go to the jury, and that the court could not have told them there was not any; and the jury, after a most careful and clear charge from the presiding judge upon this point, returned their verdict of guilty against the prisoner. If in this they erred, it is an error which could have been cured only by the granting of a new trial, which was within the peculiar discretion of the court, with the exercise of which, as we have before said, we cannot interfere.
The prisoner moved further in arrest of judgment, and assigned as error, that the indictment did not set forth or charge "that the slave was in the possession of the owner, and that the prisoner took and carried her away from his possession." The indictment in this particular conforms to the precedents to be found in the books. We have looked through Archbold, and find that the words "shall take and carry away" are the operative words used by him. Nor do we anywhere find it stated to be necessary that the indictment should charge that the property stolen was in the possession of the owner, or that the prisoner stole it from his possession. Possession in the owner at the time of the larceny is a part of the essence of the crime; but it is a matter of evidence, and is not usually stated in the indictment, and is not (151) necessary to its validity. The indictment, in S. v. May,15 N.C. 328, charges the felony as in this case. That was for stealing a slave, and was very maturely considered; each of the judges delivered an opinion, and although the exception was not taken, it is not likely it would have escaped their notice. And if the law had required that the possession, in so many words, should have been charged in the indictment, the judgment would have been arrested without a motion to that effect. The indictment in this case is an exact copy, mutatis mutandis, of that in S. v. Jernigan,7 N.C. 12. The indictment charges the negro Harriet to be the property of Bost, and in a legal sense imports possession by him, and then charges a felonious asportation.
After a careful examination of the case, we are unable to discover any
good reason why there should be a venire facias de novo, or why the judgment should be arrested.
PER CURIAM. No error.
Cited: S. v. Tribett, 32 N.C. 152; S. v. Orrell, 44 N.C. 218; S. v.Langford, ibid., 442, 444; Brown v. Kyle, 47 N.C. 443; S. v. Smallwood,78 N.C. 562; S. v. Fox, 81 N.C. 578; S. v. Taylor, 85 N.C. 592; S. v.Crook, 91 N.C. 538; S. v. Eliason, ibid., 565; S. v. Powell, 94 N.C. 923;S. v. Best, 111 N.C. 643.