68 N.C. 292 | N.C. | 1873
In this case there are two questions raised by the record:
First, as to the competency of the confessions made by the defendant to the magistrate before his commitment. The objection urged are that the caution given by the Justice of the Peace were not (295) as full as required by Laws 1868-'69, chap. 178. In this case before any confessions were made, the Justice of the Peace told the defendant "that he was not obliged to answer any question for or against himself, and gave himself, and gave him the choice to answer or not." The case states that the defendant was without counsel and that nothing was said about his having counsel"; but that after receiving the above caution, the defendant, without being sworn, made admissions of his participation in the larceny of the cotton. The admissions were taken down in writing at the time by the magistrate, and returned to the Court. The case then states that the Solicitor having made the preliminary proof, offered to read the admissions in evidence. Defendant's counsel objection, as the case states for two reasons. First, that the admissions *209 were made the defendant was under arrest. Second, because the defendant at the time was without counsel. These objection were overruled and the admissions received.
It is very clear that these admissions ought not to have been rejected for either of the reasons urged by the counsel.
The other question was, as to the ownership of the property stolen. The testimony as to the ownership of the property charged to have been stolen, was as follows: "The cotton was raised by William M. Ballard on the plantation of John D. Pemberton, in Richmond County, under a verbal agreement between Ballard and Pemberton. Ballard was to pay Pemberton one-half of the cotton raised on the plantation. This lot of cotton was stored in the gin-house on the plantation and had been divided at the time it was stolen; it was seed cotton taken to the gin-house to be gained. John D. Pemberton testified that he considered the cotton as belonging to himself and Ballard.
Upon this proof the counsel for the defendant insisted that the cotton, until divided, was in law the sole property of Ballard, and that the ownership was improperly charged in the indictment as being the property of William M. Ballard and another, and (296) asked his Honor to charge the jury, that under this indictment the defendant could not be convicted.
His Honor refused to charge as requested, being of opinion that the ownership of the cotton was properly laid in accordance with the Revised Code, chap. 35, sec. 19. His Honor was right in declining to give instruction requested, as there was no evidence that Ballard had rented the land, and this cannot be inferred from the word pay as mentioned in the evidence. Had it appeared that Ballard had rented the plantation, and that Ballard was to be at the whole expense in making the cotton, and to pay one-half of this cotton by way of rent to Pemberton, then it would have been the duty of his Honor to have submitted to the jury the question whether Ballard was not still the sole owner of the cotton until actually divided, although it had been hauled to the gin-house to be ginned. But we understand his Honor as substantially charging the jury that if they believed the evidence, then the charge in the indictment laying the property stolen as the property of Ballard and another was right, and it would be their duty to convict so far as the charge of ownership was concerned; as chap. 35, sec. 19, of the Revised Code authorized the charge to be laid as in this indictment. In this there was
PER CURIAM. No Error.
Cited: S. v. Edwards,
(297)
