June Term, 1853.
1. Where the defendant had been indicted for stealing a sheep, charged to be the property of P. P., and acquitted at the trial on the ground that the owner of the property was unknown; and he was afterwards indicted for the same offense, the sheep being charged to be the property of some one to the jurors unknown: Held, that the plea of former acquittal was no bar to a conviction upon the latter indictment.
2. The law raises no presumption, nor does the court judicially know, that the courthouse of a county is five miles or more from the boundaries of such county.
3. And where the defendant, on his arrest, said that he desired to be carried to the courthouse, which was within five miles from the place, and when so carried there, did not object that it was not the proper courthouse: Held, that it was error in the judge below to leave these circumstances to the jury upon the question of venue. He should have instructed them that there was no evidence that the offense was committed in the county as charged.
(The cases of S. v. Birmingham, ante, 120, and Cobb v. Fogleman, 23 N.C. 440, cited and approved.)
THE defendant was indicted and tried before his Honor, Judge Dick, at ROBESON, at Spring Term, 1853, for stealing a sheep. Pleas, former acquittal, not guilty.
D. Reid and Troy for defendant.
Attorney-General for the State.
On the trial it appeared that the defendant had before been indicted for stealing a sheep, charged to be the property of one Peter Prevatt, and on the trial had been acquitted, on the ground that the sheep was not the property of Peter Prevatt. The present indictment charged that the sheep was the property of some one to the jurors unknown. It was admitted that the transaction was the same as the subject of the previous trial, except as to the alleged owner of the property. (201) There was no direct proof that the offense was committed in the county of Robeson; but it was proved to have been committed, if at all, within five miles of Lumberton, and that, when arrested, the defendant desired to be carried to the courthouse for examination; and when brought to Lumberton, did not object that that was not the proper courthouse. The defendant's counsel, among other things, insisted upon the plea of former acquittal, and that there was no proof that the offense was committed in the county of Robeson, and prayed his Honor so to instruct the jury.
His Honor held that the plea of former acquittal would not avail the defendant, and charged the jury that the whole proof against the defendant was circumstantial, and if, upon consideration of all the circumstances, they should be satisfied that he stole the sheep, and stole it within the county of Robeson, they might convict him; but if those circumstances left on their minds doubts, either as to the fact of stealing, or as to the taking in the county of Robeson, they ought to acquit. There was a verdict of guilty, and a rule for a new trial having been discharged, and judgment rendered on the verdict, the defendant appealed to the Supreme Court.
The first objection, that the defendant had been formerly acquitted upon an indictment for the same offense, was properly overruled, as we decided at last term in the case of S. v. Birmingham, ante, 120. The report of that case had not been published at the time of the trial in this, and the defendant's counsel was not probably then aware of its existence.
The second point made for the defendant ought to have been sustained. The case of Cobb v. Fogleman, 23 N.C. 440, is directly in his favor; and we both approved of its principle and feel bound by its authority. In that case, a question arose whether the plaintiff knew of the unsoundness of a female slave at the time when he purchased her.
To show that he did, the defendant proved that about a month (202) before the sale, the plaintiff "bought a Negro man, who was then, and had been during the time the defendant owned her, the husband of the woman in question; that the plaintiff owned no other slave except a small boy; that the plaintiff came twice to the house of the defendant to chaffer about the purchase of the woman, before she was taken away; that messages were carried between him and the defendant by the Negro man aforesaid on the subject of the trade, but their import was not shown; that the plaintiff said the reason why he wished to purchase her, was that he owned the husband, and that his daughter did not like to wash for the Negro man; that on one of his visits to the house of the defendant, the plaintiff asked permission to have a conversation with the woman, and had a short interview accordingly, the defendant not being present." The judge who presided at the trial charged that the above stated facts furnished no evidence of the plaintiff's scienter; which was approved by this Court. Gaston, J., in delivering the opinion of the Court, said: "We hold that the judge was warranted in instructing the jury, that if the defect in question existed at the time of the purchase, there was no evidence that the purchaser knew, or had been informed of this defect. It was indeed possible that he might have acquired such information in his private conference with the Negro woman, or from communications from her husband. But where the law does not presume the existence of a fact, there must be proof, direct or indirect, before the jury can rightfully find it; and although the boundary between a defect of evidence, and evidence confessedly slight, be not easily drawn in practice, yet it cannot be doubted that what raises a possibility or conjecture of a fact, never can amount to legal evidence of it."
Applying the principle of this decision to the present case, the law certainly raises no presumption that the courthouse of a county is necessarily more than five miles from the boundaries of such county. We know, indeed, as individuals, that in several of the counties the fact is otherwise — as, among others, in New Hanover, Halifax, and Pasquotank. The testimony, then, that the defendant stole the sheep within five miles of Lumberton, was no legal evidence, direct or indirect, that he stole it in Robeson County. But it is said that the Court is bound to take notice of the boundaries of the county, and must, therefore, know judicially that Lumberton, the county seat, is not (203) within five miles of any part of such boundaries. Granting the premises, the conclusion is a clear non sequitur. There is no public law, of which we are aware, which declares how far the boundaries of Robeson County are from its courthouse; and unless there be such law, we certainly are not bound to know the fact and give it in charge to the jury. Against such a position, Deybell's case, 4 Barn. and Ald. Rep., 243 (6 Eng. Com. L. Rep., 413), is a direct authority. The other fact relied upon, that when the defendant was arrested, he desired to be carried to the courthouse for examination, and when carried to Lumberton did not object to that as being the proper courthouse, adds but little, if anything, to the testimony. It is not stated where the defendant was arrested, and the circumstances stated raise only a possibility or conjecture of the fact sought to be proved, which is not sufficient to establish it legally as a fact. The case manifestly admitted of clear and positive testimony; and we doubt not that the able solicitor, who prosecutes for the State in the circuit where the trial took place, would have given it, had he not overlooked it in the hurry of the trial — an oversight which will sometimes happen to the most vigilant under similar exigencies. The judgment must be reversed, and venire de novo awarded.
PER CURIAM. Judgment reversed, and venire de novo ordered.
Cited: Sutton v. Mardre, 47 N.C. 322; S. v. Allen, 48 N.C. 264; S. v. Whit, 49 N.C. 353; Jordan v. Lassiter, 51 N.C. 132; Wittkowsky v. Wasson, 71 N.C. 454; Marsh v. Verble, 79 N.C. 23; Ellison v. Rix, 85 N.C. 81; S. v. Nash, 86 N.C. 650; Boing v. R. R., 87 N.C. 362; S. v. Jones, 101 N.C. 723; S. v. Hooker, 145 N.C. 583; S. v. Drakeford, 162 N.C. 669.
Overruled: S. v. Lytle, 117 N.C. 801.