State v. . Epps

ScheNok, J. While there are other exceptions in the record only four are set out in the appellants’ brief. Those not so set out in their brief are taken as abandoned by the appellants. Rule 28, Rules of Practice in the Supreme Court, 221 N. C., 562. Exceptions Nos. 11 and 12 relate to the refusal of the trial judge to sustain the respective motions to dismiss the action and for judgment of nonsuit'lodged by each of the defendants when the State had produced its evidence and rested its case. C. S., 4643. After these motions had been overruled the defendants introduced evidence but did not renew their motions to dismiss the action and for judgment of nonsuit. When the motions were not renewed after all the evidence in the case was concluded the defendants waived their exceptions to the refusal of the motions *743 made at the close of the State’s evidence. S. v. Chapman, 221 N. C., 157, and cases there cited. Exception No. 17, set out in the appellant’s brief is to an excerpt from his Honor’s charge as follows: “If Henry Hunt owned the three hogs in question and they were left on his premises by him and they got out, or by some means got from his place over to the premises of the defendant, Matthew Epps, and were on his premises, and Matthew Epps seeing them there and having in his mind the intent to take them and to deprive the owner, whoever he might be, of his rightful property and to dishonestly and fraudulently appropriate the hogs to his, Matthew Epps’, own use, and with that intent in his mind, took these hogs up and carried them away and disposed of them, he would be guilty of larceny as much so as if he had taken them from the premises of Henry Hunt, because if the hogs got out and wandered over to Matthew Epps’ place, they were still constructively in the possession of the owner, Henry Hunt.” This exception cannot be sustained. The excerpt to which it is addressed is in substantial accord with the excerpt from the charge in S. v. Holder, 188 N. C., 561, which was upheld by this Court, and was as follows: “Where property is lost and a person finds it, then the duty of the finder is to keep the property for the purpose of finding the owner and he must use reasonable means for the purpose of finding the owner. If he keeps it and keeps it intact for the owner, he has a right to do that, but if the property is not abandoned but is left by accident or lost and a person finds it and he takes it with the intention 'at the time of taking it to steal it, he is just as guilty of larceny as if he had gone in the nighttime and stolen it secretly.” Exception No. 18, set out in the appellant’s brief, is to an excerpt from his Honor’s charge as follows: “Now, the evidence here tends to show that Matthew Epps and Nelson Epps were together down at Harmonia King’s and had the hogs, sold them to her; however, Harmonia King testified that Matthew Epps did most of the talking. I do not recall that anybody has quoted any language used or said to have been used by Nelson Epps. Before any presumption would arise that he was the thief, that is, presumption from possession, you would have to be satisfied beyond a reasonable doubt that he was in possession of the hogs; that is to say, that they were in his custody and under his control, and subject to his disposition. If the hogs were stolen by Matthew Epps and Nelson Epps was along with him at the time that he stole them and was with him for the purpose of assisting and aiding and encouraging him in the larceny of the hogs, then he would be equally guilty with Matthew Epps.” The excerpt which the exception assails merely states that before any presumption could arise from the possession, the jury must be satisfied *744 beyond a reasonable doubt that Nelson Epps was in possessison of the hogs. The charge does not state that the possession alone was sufficient to convict, but, on the contrary, in the preceding paragraph it specifically states that the presumption is merely a presumption of fact and is to be considered together with all the other facts and circumstances in the case in determining the defendants’ guilt or innocence. The defendants had no burden placed upon them by the assailed portion of the charge as contended by them. In truth, no mention of burden of proof is made therein. Brogden, J., in S. v. Whitehurst, 202 N. C., 631, writes: “Consequently physical presence at the scene of larceny is not deemed to be absolutely essential to conviction if it appears that the defendant actually 'advised and procured the crime’ or aided and abetted the commission thereof.” Hóke, J., in S. v. Overcash, 182 N. C., 889, writes, “. . . as to this offense (larceny) our decisions are to the effect that there can be no accessories, but all who 'aid, abet, advise, or procure the crime are principals.’ ” Exception No. 18 cannot be sustained. We have carefully read the evidence in this case and are of the opinion that when read in the light most favorable to the State it is sufficient to carry the case to the jury as to both defendants, even if the exception to the refusal to allow the motion to dismiss the case had not been waived by a failure to renew the motion at the conclusion of all the evidence. In the trial in the Superior Court, we find No error.