State v. McGowan ( 1868 )

The opinion of the Court was delivered by

Willaed, A. J.

This was an appeal from the District Court of Laurens, tried at May Term, 1858. The charge was larceny. The proof showed that Stephen Williams lost two hogs; that, subsequently, fifty pounds of pork were found in the possession of the defendant, and some slight marks discovered, claimed as ground of identification with the property lost by Williams. Evidence was offered by the defendant to the effect that he had purchased a quantity of pork about a fortnight previous to the loss of Williams’ hogs. The Judge charged the jury that if they were reasonably satisfied that the meat found in the possession of the defendant was the property of Stephen Williams, it was their duty to find the prisoner guilty. The jury found a verdict of guilty.

We regard this charge as incorrect in point of law. It was not enough that the meat found in defendant’s possession was that of Williams’ hogs; it was necessary for the State to show that a larceny had been committed, and for the jury so to conclude, before attaching importance to the identity of the property. The charge, as reported, was calculated to mislead the j ury as to the necessity of distinct proof of the fact of a larceny, and the defendant, it must be assumed, has lost a substantial advantage thereby, which would have resulted from directing their minds to the true points at issue and the relation of the proofs of identity thereto. There must be a new trial.

Hoge, A. J., concurred.