State v. . Wilkerson

Rodmah, J.

The case professes to set out the evidence, which unexplained, we must take to mean the whole evidence. It was briefly, that a hog belonging to one Thorp was seen on a certain day lying in the lock of a fence covered with leaves, and that during the night of that day, the prisoner got over the fence, looked around carefully as if looking for some one and then stooped over the hog as if to take it up, when Thorp who was on the watch hailed him, and he ran off. The Judge told the jury “that if they believed that the defendant shot down the hog, and covered it with leaves with a view to conceal it until such time as he could return to it, and take it away secretly, there was in law a sufficient asportation, and they must find the defendant guilty.”

The prisoner in his request for instructions assumes as the Judge does, that there was evidence that he shot down the hog and covered it with leaves. Yet in the case sent to this Court there does not appear any evidence tending to that effect. In the absence of such evidence the Judge clearly erred in assuming the facts. Merely looking in the night time at a dead hog lying in the lock of the fence and covered with leaves, and running away on being hailed, does not constitute larceny* Probably there was evidence that the prisoner shot the hog5 and covered it with leaves, but we cannot go out of the case sent up.

Pee CoRiam. Venire de novo.