State v. . Delk

OlaeksoN, J. From the finding of the jury there was an acquittal of the defendant on the charge of larceny of the $63.75 in money. In S. v. Fisher, 162 N. C., 550 (553), speaking to the subject, we find: “It is conceded, as we understand, that the special verdict was returned upon the second count, and there is no verdict upon the first count. It was held in S. v. Taylor, 84 N. C., 773, that 'where the jury find a defendant guilty of one count, and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of acquittal as to them.’ ” S. v. Hampton, 210 N. C., 283 (284). *633 At tbe close o£ the evidence for the State, and at the close of all the evidence, the defendant made motions in the court below for judgment as of nonsuit. C. S., 4643. The court below overruled the motions, and in this we think there was error. We see no evidence that defendant obtained or concealed possession of the watch by any artifice, trick, connivance, or fraud. It may be wise to quote fully from Pearson, C. J., on the subject of larceny in S. v. Deal, 64 N. C., 270 (273) : “If one takes the property of another, it is a mere trespass, for which an action lies; if manu forti, the owner being present, it is a forcible trespass, for which an action lies, and also an indictment. If the taking be with a felonious intent, the act is larceny, either stealing or robbery. So it turns upon the felonious intent, and the question is what is meant by a felonious intent. A prominent feature of it is that the act be done in a way showing an intention to ‘evade the law,’ that is, not to let the owner know who took his property, and against whom to bring his action, or who is to be indicted. If one takes property slyly — by stealth — he steals; if he takes the property forcibly, under a mask, or with his face blacked as a disguise, or when he supposes the owner cannot identify him, as on the highway, he commits robbery. ' So the prominent feature of a felonious intent is ‘an attempt to evade justice.’ Such is the doctrine laid down by Foster as the common law, and such I know was the opinion of Chief Justice Henderson, whose power of reflection exceeded that of any man who ever had a seat on this bench, unless Judge Haywood be considered his equal in this respect. Judge Henderson used to ask: ‘What is the difference between trespass and larceny ?’ Reply : ‘Felonious intent.’ ‘What is meant by a felonious intent?’ Reply: ‘An intent to conceal from the owner who took his property, so that he may not know against whom to bring his action or whom to indict.’ If a man takes my property openly and above board, I know whom to sue, and if force is used, I can also have him indicted. So, such acts are not apt to occur, and the public needs no special protection against them. Beccaria on Crimes. But where there is an attempt to do the thing slyly, or do it by force under circumstances of disguise, the community needs protection, and these acts are treated as being done with a felonious intent, and are punished accordingly. Id.” In S. v. Kirkland, 178 N. C., 810 (813), it is said: “In 17 R. C. L., 5, one of the latest authorities, and reliable, defines larceny: ‘As the felonious taking by trespass and carrying away of the goods of another without the consent of the latter, and with the felonious intent permanently to deprive the owner of his property and to convert it to his, the taker’s own use,’ a definition following the decisions in our State, and which we approve with the interpretation that the intent to convert *634 to one’s own use is met by showing an intent to deprive tbe owner of his property permanently for the use of the taker, although he might have in mind to benefit another.” S. v. Adams, 115 N. C., 775. In S. v. Holder, 188 N. C., 561 (563), we find: “To constitute the crime of larceny there must be an original, felonious intent, general or special, at the time of the taking. If such intent be present, no subsequent act or explanation can change the felonious character of the original act. But if the requisite intent be not present, the taking is only a trespass, and it cannot be made a felony by any subsequent misconduct or bad faith on the part of the taker. S. v. Arkle, 116 N. C., 1031.” The prosecuting witness’ testimony as above set forth was to the effect that he let defendant have the watch, knew he had it, and defendant promised to return it the next morning, and- the watch was returned within a few days. The evidence negatives a felonious intent and was not sufficient to have been submitted to the jury. All the elements of larceny must be established by sufficient competent evidence. Evidence that raises a mere suspicion, conjecture, and possibility is insufficient foundation for a verdict and should not be left to a jury. For the reasons given, the judgment of the court below is Reversed.