State v. . Capps

Settle, J. The defendant insists that the order in favor of Tom Caldwell on Elias & Cihen,for a pair of boots; and also the order on Turner, in favor of ITenry Caldwell, for a keg of powder, not having been duly proved, should not have been spoken of on the trial, nor commented upon by the Solicitor in his argument to the jury. It would seem that the defendant sought to divert the attention of the jury from the real issue, to wit: his guilt or innocence of the charge in the indictment, and to make the issue upon the probate of these two orders, when they were offered only as corroborating circumstances, to support the witnesses. It makes no difference, in this point of view, whether the orders were proved, or whether the witnesses could road or not; the fact that the witnesses had certain papers upon which one obtained a pair of boots and the other a keg of powder was • offered, as a corroborating circumstance, to the jury for what it was worth, and was a legitimate subject of comment by the Solicitor. The defendant moved in arrest of judgment, for that the *96 indictment charged that the powder was the property of “ Grier and another,” whereas the proof showed it to be the property of Grier & Alexander, a firm doing business in Charlotte, and well known to the grand jury, and to the draftsman of the bill. Our attention was called upon the argument to the case of the State v. Harper, 64 N. C., 129, where it is said that “ the property in stolen goods must be averred to be in the right owner, if known, or if not, in some person or persons unknowm; and if it appear that the owner of the goods is another and a different person from the person named as such in the indictment, the variance will be fatal.” Undoubtedly such was the rule at common law, but the objection is met, in words and spirit, by our statute, which enacts “ in any indictment wherein it shall be necessary to state the ownership of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint tenants, or tenants in common, it shall be sufficient to name one of such persons, and state such property to belong to the person so named, and another, or others, as the case may be; and whenever in any such indictment it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, or tenants in common, it shall be sufficient to describe them in the manner aforesaid, and this provision shall extend to all joint stock companies and trustees.” Bat. Rev. ch. 33, see. 65. Let it be certified that there is no error. - Pee Cueiam. Judgment affirmed.