State v. . Kent

65 N.C. 311

• Court: Supreme Court of North Carolina
• Decided: January 5, 1871
• Status: Published

Opinion

Beads, J.

We do not see any force in the defendant’s first exception: “ That the bacon i found ’ was not sufficiently identified as the bacon that was stolen.”

Suppose that was so; or suppose no bacon bad been found at all, still as there was evidence that bacon had been stolen and that the defendant was connected with the theft, the jury were authorized to convict. There was, however, evidence that the bacon found, was the bacon stolen. The prosecutrix testified that her bacon was unsmoked and had a yellow mould on it. The bacon found was unsmoked and had yellow mould on it, and she believed it was hers. And the defendant pointed out the place where the bacon was found and spoke of it as hers.

The punishment of larceny at common law was infamous —whipping and imprisonment. The statute passed since the commission of the offence charged, changes the punishment to confinement in the Penitentiary. And the objection is taken that the statute is ex post facto and void.

The rule is, not that the punishment cannot be changed, but that it cannot be aggravated.

And the change in this case would seem to be a mitigation. State v. Ratts, 63 N. C. R. 503.

At the time of the commission of this offence Gen. Sickles’ military order forbidding corporal punishment was in force. And therefore it is objected that no corporal punishment can be inflicted for that act.

Whatever force there was in the military order it was not more than to suspend the law. And as soon as the order ceased the law was restored to be administered as before.

There is no error. This will be certified.

Pee Cubiam. Judgment affirmed.