State v. . Wilson

97 S.E. 496, 176 N.C. 751, 1918 N.C. LEXIS 345

• Court: Supreme Court of North Carolina
• Decided: December 4, 1918
• Status: Published

Opinion

Walkeb, J.,

after stating tbe case: Tbe defendant’s counsel, in their brief, do not insist on their exception to tbe refusal of tbe court to non-suit tbe State upon tbe evidence. This exception, tben, will be taken as. waived; but there being some evidence of guilt, tbe refusal to nonsuit was proper. S. v. Carlson, 171 N. C., 818.

We will now consider tbe assignments of error, in tbe order of their statement in tbe record:

1. Tbe defendant objected to tbe following testimony of tbe witness, Thompson: “Rube denied any knowledge of this property until we caught tbe other parties, and Hurley Houser said be got tbe goods at Gilmer Bros. Company and turned over a good deal of it to bis folks. It was in Winston that Hurley said that. Hurley said that be bad given tbe coat to Eube’s little boy and tbe waist to Rube’s wife — that is tbe waist we got out from under Eube’s jacket. Eube acknowledged that was tbe way it come. My recollection is that Eube said that be threw these articles up in tbe attic because be did not want to get in trouble, to bide them while we were searching Sant’s bouse.” .The ground of objection was that this, though said in defendant’s presence, did not call for a reply from defendant, and so could not be taken as an admission, be standing silent. This is a misapprehension of what occurred. Tbe defendant did not remain silent, as tbe last clause quoted above shows: “Eube acknowledged that was tbe way it come.” Tbe latter part of tbe testimony was clearly competent, and even if tbe first part of it is incompetent, tbe objection must fail, as it was taken to tbe whole of it. S. v. Ledford, 133 N. C., 722; Phillips v. Land Co., 174 N. C., 542, 545, and cases cited. Besides, the last part of the evidence is what the defendant attempted to prove himself, as appears in the ease. In any view, therefore, it was harmless, if there was any error. There was no doubt that Hurley Houser stole the goods at Winston from G-ilmer Bros. Company, and the only question was whether defendant received them with knowledge that they were stolen. The defendant is restricted to the particular ground of objection stated in the court below, which is clearly untenable. Bridgers v. Bridgers, 69 N. C., 451; Gidney v. Moore, 86 N. C., 485; Ludwick v. Penny, 158 N. C., 104. It was held in the Bridgers case that “A party objecting to the introduction of evidence must state with certainty the points excepted to; and if the ground stated for such objection be untenable, it is error to reject the evidence, though inadmissible if properly objected to.” And in Gidney v. Moore, 86 N. C., 485: “A general objection to obnoxious evidence will be sustained if upon any ground the evidence should be rejected; but where the ground of an exception can be inferred from the record, another cannot be assigned here, the ground of an exception being a part of the exception itself.”

2. The defendant’s mother was called as a witness, after it appeared from the evidence that a quantity of the stolen goods were found in her house. She was asked by defendant’s counsel:

“Q. Did you see him give his wife anything ? Did you see him bring anything else there?” (Objection by the State; objection sustained; defendant excepts.)

The defendant offered to show that the goods found at his house were given to his wife by her brother, Hurley Houser, in his absence. The exclusion of this evidence was harmless. It was admitted by both sides that the stolen goods were carried to the defendant’s house by Hurley Houser. It also was immaterial, because, though some of the goods may have been delivered to his wife in his absence, if he received them on his return, knowing them to have been stolen, it would have made him just as guilty as though he had received them originally, as there was evidence from which the jury could have found that defendant and his wife were acting together under a previous arrangement, although the goods were actually delivered to her in his absence. The evidence was that they were carried there for the family, defendant being the head of the household. The theory of the State was that he assumed control over the property, whether delivered to his wife in his absence or not, hid it, denied having it, and otherwise showed guilty knowledge. S. v. Stroud, 95 N. C., 626; Sanderson v. Commonwealth, 8 Am. Crim. Rep., p. 687 and p. 691.

3. As to the scienter. The charge of the court must be read as a whole (S. v. Exum, 138 N. C., 599; Kornegay v. R. R., 154 N. C., 389; S. v. Orr, 175 N. C., 773), in the same connected way that the judge is supposed, to Lave intended it and the jury to Lave considered it, and when thus read we find no reversible error. The judge told the jury several times, and especially in the last sentences of Lis charge, that the ultimate fact for them to find, beyond any reasonable doubt, was whether defendant received the goods knowing that they had been stolen, and the jury could not well have understood that this was not the vital fact in the case. He distinctly instructed them that they could not convict the defendant unless he received the goods “which he knew were stolen.” There was strong evidence that he knew they had been stolen. His concealment of them in the attic of his house, and especially of the waist on his person, was convincing proof of his guilty knowledge, under the circumstances surrounding the' concealment. There is really sufficient evidence of a conspiracy between all the parties to commit extensive robberies or stealings by wholesale quantities. It is quite impossible to believe that the defendant did not know 'how the goods were obtained, and that his generous relatives did not come by them honestly. That which a man in the defendant’s position should have suspected, the jury had the right to infer that he did suspect, as far certainly as was necessary to put him on his guard and on his inquiries, and they might conclude-, if they saw fit to do so under the evidence, that he had made the proper and usual investigation and discovered the facts, if he was not already cognizant of them. 2 Wharton Cr. Law (2d Ed.), p. 1449; Collins v. State, 73 Am. Dec., 426; Comm. v. Finn, 108 Mass., 466; Frank v. State, 67 Miss., 125; S. v. Goldman, 47 Atl. Rep. (N. J.), 641; S. v. Adams, Anno. Cases, 1914 B, p. 1109, where the correct principle is stated and illustrated.

The other exceptions are either formal or without any merit.

No error.