State v. . Ballard , 97 N.C. 443 ( 1887 )

(S. v. Patterson, 2 Ired., 346; S. v. Roberts, 81 N.C. 606; S. v.Glisson, 93 N.C. 510; Clark v. Clark, 65 N.C. 661; S. v. Liles, 78 N.C. 496;S. v. Bragg, 86 N.C. 690; S. v. Thompson, 93 N.C. 538; cited and approved.) The indictment charged that the defendant, "one peck of corn, of the value of six pence, the property of A. B. Wheeless, then and there standing and remaining ungathered in a certain field of the said A. B. Wheeless, there situated, feloniously did steal, take and carry away," etc.

Robert A. Carter, a witness for the State, testified that he had employed three members of the bar to assist the solicitor in the trial, and that he had paid them for their services; that he had no interest in the property alleged to have been stolen by the defendant, and that the owner of the alleged stolen property had declined to prosecute this indictment.

He was asked by defendant's counsel, if he had not gone to the defendant's house, about the time the indictment was found, carrying with him a double barrel shot gun, and finding that the defendant was not at home, if he had not said to the defendant's wife, that if Ballard (meaning to include the defendant), did not get off from the land they were then on, he would put them all in jail? In answer to this question, he said he did go to the defendant's house with the shot gun, and finding the defendant absent from his house, he left a message with the defendant's wife, which was as follows:

"Tell your husband (meaning the defendant), he must get off the land which I claim and he now holds." He further stated that the land claimed was then in suit between the witness (Carter) (445) and W. K. Ballard.

The wife of the defendant was then put upon the stand, in behalf of the defendant, and in the course of her testimony she was asked: "Did R. A. Carter come to the house of your husband, with a double barrel shot gun, and finding your husband away from home, say to you: `that if the Ballards, meaning the defendant and his father, did not get off from the land the defendant was then on, being the land then in suit between him and the defendant, he would put them in jail?'"

The solicitor objected to the question and the answer thereto. The objection was sustained by the court, and the defendant excepted. There was a verdict of guilty. Motion for a new trial. Motion overruled.

The defendant then moved in arrest of judgment, upon the ground that the indictment omitted the words "cultivated for food or market," which he insisted, constituted a material part of the offense.

This was overruled, and judgment was pronounced, from which the defendant appealed to this Court. The first exception is based upon the rejection of the testimony of the defendant's wife, to controvert the statement of the witness Carter.

It has been well settled in this State, since the case of S. v.Patterson, 2 Ired., 346, that while the rule has been to regard the answers of witnesses on cross-examination as conclusive in reply to collateral questions, yet the rule does not apply "as to matters, which although collateral, tend to show the temper, disposition and conduct of the witness in relation to the cause or the parties." His answers as to these matters (446) may be contradicted. S. v. Roberts, 81 N.C. 606; S. v. Glisson, 93 N.C. 510; 1 Greenleaf, sec. 449.

In this case, the temper, disposition and conduct of the witness Carter were sufficiently apparent from his words and acts, and as was said byPearson, C. J., in Clark v. Clark, 65 N.C. 661, "When the cross-examination, instead of being general, descends to particulars, then the party is bound by the answer, and cannot be allowed to go into evidencealiunde, in order to contradict the witness, for it would result in an interminable series of contradictions in regard to matters collateral, and thus lead off the mind of the jury from the matter at issue."

We think there was no error in excluding the testimony of defendant's wife in the particular excepted to.

The motion in arrest of judgment was properly disallowed.

The Code, section 1069, declares that "if any person shall steal or feloniously take and carry, away any maise, corn, wheat, rice or other grain, or any cotton, tobacco, potatoes, peanuts, pulse, or any fruit, vegetable or other product cultivated for food or market, growing, standing, or remaining ungathered, in any field or ground, he shall be guilty of larceny and punished accordingly."

It is manifest, not only from a fair and proper construction of the language of the statute, but from the course of legislation upon the subject, that the qualifying words, "cultivated for food or market," apply and are limited to "any fruit, vegetable, or other product," and do not apply to the several articles specifically named in the statute. At common law, growing crops were not the subject of larceny. The first statute upon the subject was in the Acts of 1811, incorporated in the Rev. Stat., ch. 34, sec. 24, and made the stealing of specific crops therein named larceny. This was brought forward in the Rev. Code, chap. 34, sec. 21, and the qualifying words, "cultivated for food or market." The taking of figs, watermelons, blackberries, or other fruits or (447) vegetables, unless cultivated for food or market, would not be larceny, and as to such products the qualifying words of the statute constitute a material and necessary part of the descriptions, but they are not necessary as to the articles specifically named in the statute.S. v. Liles, 78 N.C. 496; S. v. Bragg, 86 N.C. 690; S. v. Thompson,93 N.C. 538.

There is no error. Let this be certified.

No error. Affirmed.

Cited: S. v. Williams, 117 N.C. 764; Burnett v. R. R., 120 N.C. 519.