Opinion
(Filed 16 December, 1902.)
LARCENY — Evidence — Sufficiency.
The only evidence against the accused, indicted for larceny, being that a sailor accused him of stealing his clothes, which charge he denied at that time and at the trial, is not sufficient to sustain a verdict of guilty.
INDICTMENT against Eugene Pugh, heard by Judge E. W. Timberlake and a jury, at May Term, 1902, of NEW HANOVER. From a verdict of guilty, and judgment thereon, the defendant appealed.
Robert D. Gilmer, Attorney-General, for the State.
B. G. Empie for the defendant.
The defendant was convicted of the larceny of a suit of clothes, and sentenced to ten years in the State's Prison. The only evidence was that a sailor accused the defendant of having stolen his suit of clothes out of a bag which the defendant was carrying for him, and the defendant denied the charge, when made. The judge should have charged the jury, as requested, that there was no evidence. The sailor was not at the trial, nor was there any witness who testified to any circumstances bearing upon the alleged commission of the offense. The remark of the sailor was hearsay, and was only competent as a quasi admission if the defendant had failed to deny the charge. This the defendant did promptly, when so charged, and also went upon the stand and denied it at the trial. There was not the scintilla of any evidence against him.
Error.
(808)