87 N.C. 544 | N.C. | 1882
The case presented on the record seems to assign three errors which we are called on to examine and decide.
1. The omission to recall the attention of the jury to the evidence extracted from the witnesses on their cross-examination:
The court was not asked to do this, and we must assume did present all that was material and pertinent to the inquiry as to the defendant's guilt, closing with the remark that the jury "must base their verdict upon all theevidence." *419
It is only necessary in disposing of the exception to repeat what has been recently said in another case. "It was the duty of counsel if evidence important to the defence had been overlooked, then to call it to the attention of the judge and have the omission supplied. It would be neither just to him, nor conducive to a fair trial to allow this neglect or oversight, attributable to the counsel quite as much as to the judge, to be assigned for error, entitling the accused to another trial, whatever force it might have in influencing the court in the exercise of an unreviewable discretion to grant it." State v. Grady,
2. The omission of the court to qualify the rule of presumption from the recent possession of stolen goods as inapplicable to the currency in use:
The court gave no directions nor adverted to this rule of evidence, and of course could not be called on to annex the qualification. So far as we can see, the whole matter was left to the jury to draw such inferences as the evidence warranted, and this was certainly not (547) prejudicial to the defendant's case. The state had no benefit of the rule under the charge, and the arguments of each party on the point were made to the jury.
3. The last exception is to the omission to tell the jury that there was no evidence of the larceny of the tobacco:
There was some evidence in support of this charge, in that, the defendant had no tobacco on Saturday and had some like that of the prosecutor on Monday, and had the identified silver money, thus having access to each and equal opportunities of taking both.
But if the point had been well taken, the refusal so to charge has not been prejudicial to the defendant. But one criminal act is imputed, and the felonious taking and removing either of the articles mentioned constitute the crime; and it is not changed in grade or aggravated in the imposed punishment by the larceny of both. No harm has therefore come to the defendant by his conviction of stealing both, that would not have resulted from his conviction of stealing either.
We advert to the use of the term "money" in the bill as descriptive of the coin taken, only to say that it is made sufficient so to charge in the bill by the act of 1876-77, ch. 68.
There is no error, and this must be certified that judgment may be rendered on the verdict.
No error. Affirmed.
Cited: S. v. Gould,
