State v. . Eunice
139 S.E. 774
N.C.
1927
Check Treatment
BeogdeN, J.

Tbe chief exception is to tbe failure of bis Honor to properly charge tbe jury. In tbe beginning of bis charge tbe trial judge instructed tbe jury that: “In order to convict him tbe law places tbe burden on tbe State to satisfy you beyond a reasonable doubt that be is guilty as charged in tbe bill of indictment.” Tbe judge then proceeds to array fully tbe contentions of tbe State and tbe defendant, and concludes as follows: “You will take tbe ease and consider it, consider all tbe evidence in tbe case, whether I have called it to your attention or not. You are sensible men. Take this evidence and weigh it, and say what weight you will give to each and every part of it, accepting that wbicb you find entitled to be accepted and rejecting that which is not. If tbe State has carried tbe burden, wbicb tbe law places upon it, and has satisfied you beyond a reasonable doubt that tbe defendant is guilty, as charged in tbe bill of indictment, your verdict would be guilty. If tbe State has not so satisfied you your verdict would be not guilty.”

Tbe specific exception addressed to tbe charge of tbe court is that tbe defendant was being tried upon an indictment for larceny and that tbe charge as given contained no definition of larceny or tbe legal elements wbicb constitute tbe offense, and for tbe further reason that tbe question of felonious intent was not submitted to tbe jury.

In S. v. Barrett, 123 N. C., 753, tbe defendant was indicted for larceny. Tbe court charged tbe jury as follows: “If you believe from tbe evidence that tbe prosecutor missed an axe, and if you should believe that tbe axe described by tbe witness, Shannon, as in tbe possession of tbe defendant, was that axe of prosecutor, and believe all this beyond a reasonable doubt, you will bring in a verdict of guilty, otherwise you will acquit tbe defendant.” This Court awarded a new trial, declaring in tbe opinion: “Tbe charge is fatally defective for tbe reason that it does not submit tbe question of felonious intent to tbe jury, wbicb is *411 one of tbe necessary ingredients of larceny.” Again, in S. v. Coy, 119 N. C., 903, tbe Court said: “What is meant by felonious intent is a question for tbe court to explain to tbe jury, and whether it is present at any particular time is for tbe jury to say.” S. v. Kirkland, 178 N. C., 810; Blake v. Smith, 163 N. C., 274.

Under tbe rules of law applicable tbe defendant is entitled to have bis exception sustained.

New trial.