State v. Davenport

The opinion of the court was delivered by Mr. Justice McGowan.

The defendants were found guilty of grand larceny — stealing one bale of cotton, alleged to be the property of a “ginning firm,” c.omposed of Che defendant, Richard Davenport, and nine others, and alleged to be of the value of twenty dollars. They were sentenced to imprisonment in the State penitentiary for one year. A motion was made before the trial judge for a new trial, on the ground of newly discovered evidence, and errors of law charged by the *351 presiding judge. These were overruled, and the defendants appeal to this court, upon the following grounds:

I. Because the presiding judge erred in overruling the defendants’ motion for a new trial, and in refusing to grant the same.

II. Because the presiding judge erred in charging the jury that the ignorantly helping to load the cotton in question, and to carry it away by a member of the firm, would not keep it from being larceny, because he was not right sure that a member of that ginning firm “might not have been guilty of larceny, if he had taken the property from the common place where it was stored, and carried it away and converted it fraudulently to his own use;” thus confusing and leaving the minds of the jury in doubt as to the true import of the charge and the facts applicable thereto, in carrying away and fraudulently converting the cotton to his own use by a member of the firm.

III. Because the presiding judge erred in charging that it was for the State to show the guilt of the defendants beyond a reasonable doubt, and, in connection with said charge, failed to define what constituted a reasonable doubt, in a sufficiently clear and distinct manner.

IV. Because the presiding judge erred in charging the rule in reference to circumstantial evidence to be, that the testimony must not only be consistent with the guilt of the defendants, but inconsistent “with any other reasonable supposition,” and more especially in not making clear to the jury what was the meaning of an inconsistency “with any other reasonable supposition.”

V. Because the présiding judge erred in not charging the distinction between trespass and larceny, when the whole drift of the facts raised the question as to whether defendants committed trespass or larceny; and, therefore, the court had no jurisdiction.

VI. Because the Circuit Court had no jurisdiction of the larceny charged, as there was no sufficient proof of grand larceny, as charged in the indictment.

This is a case of purely circumstantial evidence, which is all *352 unnecessarily printed in the record, as taken from the notes of the stenographer. We will consider the exceptions in their inverse order.

1 The 6th exception charges that the court had no jurisdiction of the case, for the reason that there was no sufficient proof that the bale of cotton alleged to have been stolen was worth more than $20. We think there was sufficient evidence to go to the jury on that subject. E. D. Nance, the prosecutor, testified that he did “not know exactly what the bale of cotton was worth; about $30 — maybe a little more

In reference to the 5th exception, it is said to be discussed in the 2d exception.

2 The 4th exception complains, that the judge erred in charging that the rule in reference to circumstantial evidence is, ‘ ‘that the testimony must not only be consistent with the guilt of the person charged, but inconsistent with any other reasonable supposition.” This was a slight departure from the words generally used, but we cannot think that it constituted error of law. If counsel objected to the words in which the proposition was expressed, he should have requested the judge to charge as he desired.

3 The 3d exception complains that the judge “failed to define what constitutes a reasonable doubt, in a sufficiently clear and distinct manner.” This is certainly very indefinite as a legal objection, and we can not say that it was appealable error.

4 The 2d exception was [to so much of the charge] as follows: “In this case, if the other elements of larceny were there (we suppose, ‘the felonious intent,’ &c.), it would be none the less a larceny, if a member of the ginning firm — if there was a ginning firm — ignorantly helped to load the • cotton and carry it away. That could not keep it from being larceny, because I am not right sure that a member of that firm might not have been guilty of larceny, if he had taken the property away from the common place where it was stored, and carried it away and converted it fraudulently to his own use,” &c. Was that error? The objection is evidently based on the idea that, to constitute larceny, there must be a taking *353 aud carrying away the personal property of another with a felonious intent. But that rule has been somewhat modified in various particulars. “The intent to steal need not have existed at the time of obtaining possession of the property, if followed by a felonious appropriation, and the theft is complete at the time of such appropriation. Where, however, the felonious intent exists at the time the property is obtained by false pretense, it is larceny, and the crime is complete at the time possession of the property is so obtained.” 12 Am. & Eng. Ency. L., page 772 (Larceny). See State v. Butler, 21 S. C., 353; State v. Shirer, 20 S. C., 392. “While a person is staying at a tavern, the landlord offered him a gun to go out and shoot robins. He takes the gun, shoots one or two, and then goes away and disposes of it. Held to be larceny.” Richards v. Commonwealth, 13 Gratt. (Va.), 803. We do not think that there was error here.

5 The first exception complains that “the presiding judge erred in overruling the defendant’s motion for a new trial, and in refusing to grant the same.” The refusal of a motion for a new trial upon the facts is not appeal-able to this court.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.