State v. . Bynum , 117 N.C. 749 ( 1895 )

Defendants were indicted in ordinary form for stealing money from one Harris in the one case, and from one Barbee in the other case. The evidence established that Barbee and Harris were (750) wagoners in camp together in Moore County, and were asleep by a camp fire, and at night their camp was assaulted by four or five negroes. Two by the name of Rice pointed pistols at Barbee and Harris and compelled them to hold up their hands. Barbee, not holding up quick enough, was fired at, and while both were covered by pistols the pockets of each were rifled by defendants, and money taken from the person of each, and all other things about the camp fire were taken and carried away. There was no evidence that the value of the entire property and money taken was over $20. Defendant Bynum was there aiding and abetting. The witness testified they had never seen the negroes before, but they were identified by other evidence. The evidence established that the money taken from Barbee and Harris was the separate property of each. The defendants were convicted and sentenced to a term of seven years each in the penitentiary. There was no evidence introduced as to whether defendants, or either of them, had before been convicted of larceny. This was in case No. 115. Defendants excepted to the sentence of the court as against Laws 1895 on larceny.

At the same term of the court, in No. 149, the defendants were indicted for stealing money from the person of the other wagoner, W.W. Harris. They pleaded former conviction and not guilty, the pleas being together by consent. The evidence was the same as in the other case, except in this case the bill charged the defendants with stealing money from the person of Harris. The court charged the jury that there was no evidence of former conviction, and defendants excepted. Verdict of no former conviction and of guilty as to both defendants, and they were sentenced to seven years in penitentiary concurrently with the other case. Defendants excepted and appealed in both cases, maintaining in the first case that the bill was not sufficient to (751) justify the sentence, and in the second case that, being the same occurrence, the defendants were protected from a second prosecution by the verdict and judgment upon the first bill. The defendants are indicted in the ordinary form for stealing the money of B. E. Barbee, and were convicted and sentenced to the penitentiary for seven years. The evidence showed that the defendants assaulted said Barbee and W. W. Harris, and took from each his separate money during the same assault. They were convicted and sentenced at the same term of the court for the taking of the money of said Harris. The defendants plead former conviction and excepted to the sentence of seven years as in violation of Laws 1895, ch. 285, as follows: "Sec. 1. That in all cases of larceny where the value of the property stolen does not exceed twenty dollars, the punishment shall for the first offense not exceed imprisonment in the penitentiary or common jail a longer term than one year.

"Sec. 2. That if the larceny is from the person or from the dwelling, by breaking and entering in the daytime, section 1 of this act shall have no application.

"Sec. 3. That in all cases of doubt the jury shall, in the verdict, fix the value of the property stolen."

There was no evidence that the value of the entire property and money taken was over $20, and the verdict was guilty in the manner and form charged in the indictment. The case is taken out of the first section by the second section, as the proof showed that (752) the taking was from the person.

There was no evidence of former conviction, as the case referred to and relied upon was for the larceny of the money of W. W. Harris at the same time by the defendants. S. v. Nash, 86 N.C. 650. It was not essential that the State should have alleged in the indictment that the taking was from the person, so as to take the case out of section 1 of the act, as that was a matter of proof to be shown in defense, the second section being a separate and distinct part of the act. S. v. Downs, 116 N.C. 1064.

Affirmed.

Cited: S. v. Harris, 119 N.C. 813; S. v. Davidson, 124 N.C. 844; S.v. R. R., 125 N.C. 671; S. v. Hankins, 136 N.C. 625.