State v. Foy.

Whether there was any evidence tending to show that defendant was guilty of the larceny of the box of candy is the question raised by defendant's demurrer to the evidence. The only evidence introduced was that testified to by the witness Barbee, as follows: "I am employed as clerk by Mrs. W. J. and Clarence Cromer, candy makers and (805) confectioners, in the city of Winston. Defendant, Will Foy, had been working there for some time. On Monday, about 16 June, 1902, I saw a box of candy in the back room, under a table. I could not tell who put it there. I watched it every day to see if I could catch the defendant, Will Foy, taking it away. On Friday of the same week I sent Will Foy in the room where the box of candy was to get some sugar, and thought that was a good way to catch him, if he put it there. Will Foy, the defendant, went after the sugar, and while he was gone I waited and watched for him to see if he got the candy. He came back with the sugar and also the box of candy. I said, ``Will, what have you got there?' He did not say anything. I 'phoned for a policeman, and Policeman Miller came and sought the defendant and took the box of candy away from him." Cross-examined: "I waited from Monday until Friday, trying to catch the defendant. During the whole time the box of candy remained in the other room, under the table. I could have prevented it from being stolen, but wanted to catch the one who put it under the table, so I could have him punished. I sent the defendant in the room where the candy was for some sugar, for the purpose of catching him if he should take it. I had been missing some candy, and I wanted to catch the thief, whoever he was."

To constitute the crime of larceny, there must be evidence of a felonious intent in the taking. Something more than the mere act of taking is necessary to be shown before the jury can proceed to inquire into the intent. There must be evidence to show that the taking was done under circumstances inconsistent with an honest purpose, such as when done clandestinely, or, when charged with, denies the fact (4 Bl., 232); or secretly (S. v.Sowls, 61 N.C. 151; S. v. Ledford, 67 N.C. 60; 2 Archbold C. Prac. and Pl., 6 Ed., 366-364); or forcibly (S. v. Powell, (806) 103 N.C. 424; 4 L.R.A., 291; 14 Am. St., 821; S. v. Grigg, 104 N.C. 882; S. v. Coy, 119 N.C. 901); or by artifice (S. v. Deal, 64 N.C. 270); and that there was an original felonious intent, general or special, at the time of the taking (S. v. Arkle, 116 N.C. at p. 1031). The evidence of the State's witness fails to show any act done by defendant inconsistent with an honest purpose or inconsistent with the duties of his employment. The box of candy was lying under the table, where, by inference, it appears, it did not belong, and there is no evidence to show that defendant had put it there or that he knew it was there. He was working for the firm, and was sent by the witness in the room after some sugar, and returned with the sugar and also the box of candy, bringing them both to the witness, clerk of the firm, who had sent him. Being asked (having the sugar and the box of candy), "What have you got there?" did not say anything, and was forthwith arrested. There is no more evidence to show that he took the candy feloniously than the sugar. He was ordered to bring the sugar, and also brought the candy, which was out of its usual place, but the taking of both was under the same conditions and circumstances. There was no artifice, trick, secrecy, concealment, force or appropriation of either. The fact of his bringing the candy, together with the sugar, was no evidence that he had placed the candy where it was found. The evidence was insufficient, and his Honor erred in not sustaining defendant's demurrer.

Error.

(807)