State v. . Stroud

Ashe, J., (after stating the facts as above). We are unable to find error in any of the rulings of the Judge in the Court below, which have been excepted to by the prisoner. There is none in the first exception. It has been so often held by this Court, that in petty larceny there areno accessories, that we did not suppose that question would be brought again before us. But we find it here presented in this record and gravely insisted upon. It is familiar learning that in treason and pettj larceny there are no accessories. The distinction between grand, and petty larceny was abolished by tire act of 1856, Rev. Code, ch. 34, sec. 36, The Code, §1075; and in State v. Tyler, 85 N. C., 569, it was held that the effect of this statute was to reduce all felonious stealing to the grade of potty larceny, and in State v. Fox, 94 N. C. 228, it was decided, that there are no accessories before the fact in petty larceny, for not only those who did the act, but all who advise, counsel or procure the act to be done, are principals. So in State v. Borden. *631 1 Dev., 518; it was decided, “that whoever procures a felony to be done, although it be by the instigation of a third person, is an accessory before the fact, and that which in felony makes a person an accessory, before the fact, in petty larceny and misdemeanors makes him a principal.” The second exception is equally untenable as the first. The Court charged in substance, that if the meat after being stolen, was directed by the defendant to be carried to a certain place, he at thetime knowing that it had been stolen, it was a receiving in the eye of the law. To constitute the criminal offence of receiving, it is not necessary that the goods should be traced to the actual personal possession of the person charged with receiving. It would certainly make him a receiver in contemplation of law, if the stolen property was received by his servant or agent, acting under his directions, he knowing at the time of giving the orders that it was stolen, for qui facit, per alium facit per se. It is the same as if he had done it himself. The defendant, if the witnesses w'ere to be believed, was the instigator, prime mover and manager of the nefarious transaction from beginning to end. Those who took the hogs from the pen, killed and cleaned them and carried them to the still-house, were his pliant tools, acting all the while under his orders. For at every stage of the transaction they went to him to know what was next to be done. After they were taken from the pen, they went to him to know what was to be done with them. He said, “kill them.” They were killed. The next night they went to him again for directions as to what was to be done with the meat, and he told them to put it in the still-liouse, to which place it was accordingly carried, and a few days afterwards he told Holland that some one had taken some meat he had at the still-house. This was an admission of his having possession oí the meat. But it is needless to pursue this point further, for the jury rendered a general verdict, and when that is the *632 case on a trial of a criminal action where there are several sounts in the indictment, and testimony is offered with respect to one only, it will be presumed to have been given on that count to which it was applicable, State v. Long, 7 Jones, 24, and when one of two counts in an indictment is bad, a general verdict will be supported by that which is good; State v. Beatty, Phil., L. 52. So that there being a general verdict in this case, when the punishment is the same, it is immaterial whether the evidence is applicable to the one count or the other. . The last exception is as devoid of merit as the others. It was directed to the refusal of the Judge, to charge that the jury ought not to convict upon the unsupported testimony of an accomplice. His Honor could not have given such a charge, for it is settled law in this State, that a person may be convicted upon the unsupported testimony of an accomplice, if the testimony produce conviction of its truth upon the mind of the jury, and as the Judge told the jury in his charge upon the point, “they were the sole judges of the testimony.” In State v. Weir, 1 Dev., 363; when one of the questions under consideration was whether an accomplice-was a competent witúess, Taylor, O. J., speaking for the Court, said: “It is now settled that his evidence may be left to the jury, who, if they believe him, may convict the prisoner.” To the same effect is State v. Haney, 2. D. & B. 407. If a prisoner may be convicted upon the unsupported testimony of an accomplice, certainly he may be when the testimony is corroborated, as it was in the case by Rouse, who testified to seeing the cart tracks going from the old field, whore he saw signs of hogs having been recently cleaned, to the still-house; and by Holland, who stated what the defendant said to him about this meat having been taken from the still-house. There is no error. No error. Affirmed.