100 S.E. 241 | N.C. | 1919
The appellant, Garland Stancill, was jointly indicted with Ernest Perry and Raymond Stancill for the larceny of a lot of leaf tobacco of the value of $250, property of J.H. Little and others, and for receiving the same knowing it to have been stolen.
The appellant, Garland Stancill, was jointly indicted with Ernest Perry and Raymond Stancill for the larceny of a lot of leaf tobacco of the value of $250, property of J.H. Little and others, and for receiving the same, knowing it to have been stolen.
The evidence for the State tended to show that on Friday night, 25 October, 1918, the defendants, Ernest Perry and Garland Stancill, took and carried away from the packhouse of J.H. Little 49 sticks of tobacco, the property of J.H. Little. They were driving the car of Raymond Stancill and carried the tobacco, thus stolen, to the home of Raymond Stancill, where it was received by said Raymond. The testimony of the defendant's witnesses tended to show *735 that both Garland and Raymond Stancill were not guilty. Both of them admitted the fact that Little's tobacco was carried to Raymond Stancill's house by Perry and Garland Stancill, but both disclaim guilty knowledge.
Garland Stancill testified as follows:
"That he went with Perry, but had never been in that territory before, and Perry told him that he was going to his Uncle Bob Parker's after the tobacco; that Perry got out of the car and went up to the house, which he told witness was his uncle's house, came back and stated to the witness that his uncle said go ahead and get the tobacco; that the witness had no idea that Perry was not telling the truth, and did not know that the tobacco was not Perry's tobacco."
At the trial Ernest Perry submitted to a verdict of guilty, and Raymond Stancill was acquitted, while Garland Stancill was convicted. From the judgment upon such conviction, Garland Stancill appealed to this Court.
after stating the case: It will be perceived from the foregoing statement that the issue in the case, and it was clearcut and sharply drawn by the contentions of both the Stancills, was, Did the Stancills know that Ernest Perry had stolen the tobacco? The errors assigned by the defendant relate to the competency of testimony. It appears that the three defendants were jointly indicted for stealing tobacco from J. F. Harris and others, and the evidence tends to show that they had formed a conspiracy (685) to commit the theft, and this was the substance of the offense, as shown by the bill and the testimony. They had combined together, at least two of them — and there was evidence against the third, who was finally acquitted — to do an unlawful act, that is, to steal from the prosecutors. The acts and declarations of those who were parties to the common design, in furtherance of the conspiracy, were competent. S. v. Anderson,
The testimony of Ed. Marks as to what the defendant, Ernest Perry, had said to him about the stealing of the tobacco by Garland *736
Stancill and himself was, standing by itself, an unsworn declaration of Ernest, incompetent against Garland, but he afterwards took the stand himself as a witness and testified to the same facts. If the statement by him was technically incompetent, at the time of its introduction, and we will admit that it was so, the error was cured when Ernest Perry testified, substantially at least, to the same thing. Albert v. Ins. Co.,
The testimony as to the theft of the Wilkinson tobacco (686) was offered merely to show the intent with which the defendants stole this tobacco, and not to prove the accusation substantively. It was sufficiently connected with the main charge to render it competent for this purpose. It was all taken to Raymond Stancill's the common storehouse for the loot of these defendants. It was but a part of a series of transactions carried out in pursuance of the original design, and it was contemplated by them in the beginning, that they should plunder the tobacco barns in the neighborhood, and this was one of them. The jury might well have inferred this common purpose from the evidence. Robbing Wilkinson was a part of the common design, and done in furtherance of it. Proof of the commission of other like offenses to show the scienter, intent, or motive is generally competent when the crimes are so *737
connected or associated that this evidence will throw light upon that question. In Wharton's Cr. Ev. (10th ed.), p. 60, such testimony is thus classified: "First. As part of the res gesta. S. v. Freeman,
The testimony of Oscar Bryant was competent as corroborative of the witness Henry Crowell. It was also competent as rebutting Garland Stancill's special defense, that he was not familiar with that neighborhood, and that he was deceived by Perry as to the latter's purpose in going to "his Uncle Bob Parker's house." *738
It may be said generally that the objections to testimony were taken after the questions had been answered. This is not the proper course, and the reason is that it gives the objector two chances, if the answer proves to be favorable to him, he would not need an objection, but if unfavorable he would. He can be silent if he likes it, or object when he finds that he does not. He should object to the question, and then, if the answer is not responsive, and contains unfavorable new matter, he can move to strike it out. Beaman v. Ward, supra; Dobson v. R. R. supra.
The prisoner was able defended, but with all the light shed upon the case at the trial below, and in this Court, we deem the criticisms of counsel in regard to the rulings of the court to be unsound.
We can discover no tenable ground for reversal.
No error.
Cited: Potter v. Lumber Co.,
