State v. . Weaver

Avery, J. — after stating facts above: It is an established rule of evidence, that “ when, on a. trial- for larceny, identity is in question, testimony is admissible to show that other property, which had been stolen at the same time, was also in the possession of the defendant when he had in possession the property charged in the indictment.” Wharton Crim. L., § 50. This principle is sustained by reason as well as authority. When several articles are taken at one time, and “the transaction is set in motion by a single impulse and operated by a single unintermittent force, it forms a continuous act, and hence must be treated as one larceny, not susceptible of being broken up into a series of indictments, no matter how long a time the act may occupy.” 2 Wharton’s Crim. L., § 1817. So that the testimony does not tend to prove a different, but the same offence. The plea of former acquittal or conviction on this indictment would unquestionably *761 be good as a bar upon the trial of another charge against the defendant for larceny of the pants, the property of the prosecutor, upon offering proof either that they were taken at the same time when the articles charged in this case were taken, or upon showing that testimony was offered for the State on the trial of this indictment, tending to show they were stolen at the same time. This Court has gone further, and allowed evidence of a different offence of the same character, and connected with that charged in the indictment, in order to show guilty knowledge, where the intent is of the essence of that charged. State v. Murphy, 84 N. C., 742; State v Thompson, 97 N. C., 496; 1 Wharton’s Crim. L., § 649; State v. Parish (decided at this term). The officer who conducted the search, under the warrant, at Weaver’s house, testified, among other things, as follows: "Weaver did not resist the search, but brought out many articles which Wheeler did not claim, but as soon as the shirt and pants were produced he claimed them, and said the buttons had been put on by a lady in his neighborhood. Weaver said he ‘could prove where he got those things; that George Ellis had bought them from Earthing’s store in Durham.’ This was said in the presence of Ellis. Weaver was not under arrest at the time.” Defendant Weaver objected to this evidence, and insisted that he was under arrest at the time. The objection was overruled, and the defendant excepted If the State had shown a declaration of the defendant in itself tending directly^ to establish his guilt, as a confession on his part, when there was no evidence that it was made under duress, through fear excited by threats, or under the inducement of a promise of escape from, or mitigation of, the punishment, the testimony would have been competent, even if the defendant had been in arrest. It is unnecessary to cite authority to sustain so plain a proposition. After the declaration was proven by the witness, it was competent for *762 the State to contradict it by testimony tending to show that the defendant Weaver did not get the pants from Ellis and the latter bought no such pants from Earthing’s store. In addition to the assignments of error in the Court below, it is insisted in this Court that the judgment shall be arrested on three grounds, which we will discuss seriatim — : 1. The record of the swearing and impaneling of the grand jury is as follows: “And the aforesaid good and lawful men (among whom was named in the record Joseph B Parham) so summoned for the first week, the following are duly drawn and sworn, and, the Court having appointed Joseph B. Par-ham foreman, are charged as grand jurors, to-wit: R. B. Best,” &c., naming sixteen others. We think that it sufficiently appears from the record that Parham was drawn as a grand juror, and the presumption is that the Court complied with the law by administering the oath first to him and then in the usual form, which pre-supposes that to have been done to the others. If such an' objection were good at all, it is questionable whether it could be entertained unless it had first been raised by plea in abatement below. State v. McNeill, 92 N. C., 812. 2. The objection that the recital in the indictment, thqt “the jurors, upon their oath, present,” &c., does not sufficiently show that it was presented by the jury in open Court, cannot be sustained. The presumption is that it was properly-presented, as it is endorsed .as a true bill and signed by the foreman, and proof to the contrary could only be heard on plea in abatement filed in apt time. State v. Gainus, 86 N. C., 632; State v. Bordeaux, 93 N. C., 560. 3. The record of the term at which the case was tried before Bynum, Judge, sets forth that, “ at Superior Court, continued and held in and for the county of Granville and State of North Carolina, at the court-house thereof in Oxford, on Wednesday, the 24th day of April, A. D. 1889, present,” &c. It is contended by counsel that the fact that the Court *763 appears to have been first opened on Wednesday is fatal to the jurisdiction. The Sheriff is required by §926 of The Code to “adjourn the Court from day to day until the fourth day of the term inclusive,” &c., if the Judge of the Superior Court shall not be present. It was, therefore, lawful to open the Court as late as Thursday, and it must be presumed that it was adjourned from day to day, as the law directs, by the Sheriff There is no error. Affirmed.