State v. Barden, 12 N.C. 518, 1 Dev. 518 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 518, 1 Dev. 518

The State v. Major Barden.

From Wayne.

It seems that a witness may speak of information derived from a negro, upon which acts are predicated, in explanation of those acts. One who is privy to a petty Larceny before the fact, is a principal.

The Defendant was indicted for Petty Larceny, in stealing a bag of cotton.

On the trial a witness stated, without any objection on the part of the Defendant, that he was informed by a negro, that the cotton was in a house, on the \ remises of the Defendant — that he searched that .house, and found the information of the negro to be correct.

His honor Judge Strange informed the Jury, that if they believed from the testimony, that the stealing was the joint act of the Defendant and of the negro, who had given the information, then* verdict ought to be for the State — that if they believed it to be the act of the negro alone, but committed under any previous concert with the Defendant, they ought also to find the Defendant guilty. But if they believed that the negro had taken the cotton without any previous concept with (he Defendant, they ought to return a verdict for the Defendant.

The Defendant was convicted, and moved for a new trial, 1st, because the witness had given in evidence the information of the negro, and 2d, because of error in the charge of the Judge.

No Counsel appeared for the Appellant, and the case was submitted without argument, by Devereux, in the place of the Attorney-General.

Henderson, Judge.

The conversation with the negro, or rather the fact that, the negro directed the witness to a particular place, to search for the cotton, is a circumstance of which the witness might speak, especially as it was not objected to. I wish to express no opi-nioH as to what would be the case if the evidence had been obiected to. I rather think that the insulated „ . A , . it fact is proper, if tor no other purpose, to explain the motive of the witness. I cannot see how it could effect the Defendant, otherwise than to support the credit of the witness, by showing that he had a motive for his conduct. In that view it went to show, not that the cotton was in the house, but that the witness had been told it was there. As to the other parts of the case, there is no doubt, but the opinion of the Court was correct. All who are concerned in a petty larceny, are principals. Whoever procures a felony to be done, although it be by the instigation of a third person, is an accessary before the fact; and that which in felony makes a person an accessary before the fact, in petty larceny and misdemeanors makes him a principal.

Per Curiam. — Judgment affirmed,