State v. . Craige

Ashe, J. The only exception taken in the court below was to the refusal of His Honor to give" the instruction asked, that there Avas no asportation of the Avheat. There was no error in the refusal of the court to give the instruction. Larceny is defined to be the felonious taking and carrying away the personal goods of another. 4 Blk., 229. There must not only be a taking but a carrying aAvay to constitute the crime. Arch. C. L., 190. And it is held by all the authorities that a bare removal from the place Avhere the goods are found by the thief, though he does not make off AA'ith them, is a sufficient asportation or carrying aAvay. Thus if a thief, intending to steal plate, take it out of a chest in AA’hich it Avas, and lay it down on the floor, but be surprised before he can make his escape Avith *478 it; so where the defendant drew a book from the inside pocket of the prosecutor’s coat, about an inch above the top of the pocket, but while the book was still about the person of the prosecutor, the prosecutor suddenly put up his hand, upon which the defendant let the book drop and it fell in the prosecutor’s pocket; it was held in both of these cases that there was a sufficient aspor-tation to constitute larceny. Arch. C. L., 190. In further illustration of this doctrine, it has been held, by the unanimous opinion of the twelve judges of England, where the prisoner got into a wagon, and taking a parcel of goods which lay in the forepart, had removed it near the tail of the wagon where he was apprehended, that as the prisoner had moved the property from the spot where it was originally placed, with an intent to steal it, was a sufficient talcing and carrying away to constitute the offence. 2 East P. C., 556. And again, where the prisoner was indicted for robbing the prosecutrix of a diamond ear-ring, it appeared that as she was coming out of an opera house, the prisoner snatched at her ear-ring and tore it from her ear, which bled, and she was much hurt, the ear-ring fell into her hair, where it was found on her return home. On a case reversed the judges were of opinion that this was a sufficient taking to constitute robbery, it being in the possession of the prisoner for a moment, separated from the owner’s person, though he could not retain it, but probably lost it again the very instant it was'taken. Rex v. Lassiter, 1 East P. C., 557; State v. Green, 81 N. C., 560. To apply the principle announced in those cases to that before us: Here, the wheat in garner No. 50 was the property of Cheek, and though in the actual possession of the prosecutor, who was the millpr, the constructive possession was in Cheek, and while a severance from the possession of the owner is necessary to constitute larceny, it matters not whether the severance is from his constructive or actual possession. 3 Arch., C. PL, 366. The transfer of the wheat by the defendant from garner No. 50 to garner No. 51, containing his own wheat, was a sufficient *479 asportation to constitute the offence of larceny, and it could make no difference whether in fact he would derive any benefit from the transfer of the wheat, for the felonious quality consists in the intention of the defendant to defraud the owner and apply the thing stolen to his dwn use. . In this court, defendant’s counsel moved in arrest of judgment, upon the ground tiiat the bill of indictment charged the ownership of the property to be in Marion Cheek, while the evidence in the case showed it to be in J. M. Cheek, Jr. The motion cannot be sustained upon any such ground. The judgment in a criminal prosecution can only be arrested for defects in the bill of indictment when it shows substantial defects upon its face. The court cannot look to extrinsic evidence to ascertain the defects. State v. Walker, 87 N. C., 541. The defendant contended that if the motion in arrest could not be sustained, that the defendant was entitled to a venire de novo, upon the ground that there was a variance between the proof and the allegations in the bill of indictment. But whatever force there may have been in this point, if it had been raised at the proper time, it cannot' avail him here. There was no such exception taken in the superior court, and this court will not consider an exception which was not taken in the court below. State v. Jones, 69 N. C., 16; State v. Potter, Phil., 338; State v. Cowan, 7 Ired., 239. And we must assuthe that Marion Cheek and J. M. Cheek; Jr., are the same, for when there is no exception or statement to the contrary, the court must presume that' every fact was proved which was necessary to sustain the verdict. Honeycut v. Angel, 4 Dev. & Bat., 306. No error. Affirmed.