#### STATE v. JAKE SHUFORD and LOUIS CLEMENT.

(Filed 20 April, 1910.)

1. Evidence — Objections and Exceptions — General Objections.

A general objection taken to evidence on tbe ground of incompetency cannot be sustained when a part of tbe evidence objected to is competent.

2. Evidence, Competent — Larceny.

Upon trial under an indictment for burglary in the second degree testimony of a witness that “parties had been in our room” is not objectionable as a mere expression of witness’s opinion, he having no knowledge that defendants had been there, when it appears from his evidence that he intended to testify that some one had been there, judging from the appearance of the room.

3. Evidence — Former Evidence — Opinion—Harmless Error.

Testimony of a justice of the peace before whom defendant had had a preliminary trial, that the defendant had substantially testified in the Superior Court to what he had testified before him, is not reversible error when the witness has stated what the defendant had testified before him, thus giving the jury full opportunity to pass upon the question Whether there was any discrepancy or conflict in the testimony.

4. Appeal and Error. — Evidence in Rebuttal — Discretion of Court.

The trial judge may in his discretion refuse to allow additional testimony in rebuttal, after the case has been closed, and his ruling is not reviewable on appeal.

5. Larceny from Dwelling — Night-time—Value of Property — interpretation of Statutes.

Revisal, see. 3506, providing that “in all cases of larceny where the value of the property stolen does not exceed $20 the punishment shall, for the first offense, not exceed imprisonment * * * for a longer term than one year. If the larceny is from * * * the dwelling-house by breaking and entering in the daytime, this section shall have no application,” means that a larceny committed by breaking and entering a dwelling-house in the night-time cannot be punished by imprisonment for more than one year when the value of the property stolen does not exceed the amount named; for while a penal statute should be strictly construed, it must be reasonably construed. Revisal, sec. 3500.

Appeal by defendant from. Long, J., at November Term, 1909, of BowaN.

Tbe facts are stated in tbe opinion of tbe Court.

Attorney-General Bickett and G. L. J ones for tbe State.

Glement & Clement and Whitehead Khdtz for defendants.

*810Walker, J.

This was an. indictment against the defendants for burglary in the second degree, and the allegation in the indictment is that they did break and enter the house of B. F. McDaniel and did feloniously steal and carry away therefrom certain articles of personal property described in the indictment.

The defendants were convicted of larceny, and appealed to this Court from the judgment of the court below, upon exceptions and assignments of error stated in the record.

The first exception is tó the statement of B. F. McDaniel, a witness for the State, as follows: “The parties had been in our bedroom.” The defendants contended that this was a mere expression of opinion on the part of the witness, as it appeared that he had no knowledge of the fact. The statement is found in a mass of testimony, some of which is. clearly competent, and to which the defendant entered a. general objection. This would be sufficient to dispose of the exception, as the defendant should have pointed out the part of the evidence to which he objected. If the answer of a witness is blended with other testimony which, or a part of which, is competent, and a general objection be taken to the whole, the objection fails, though a part of the testimony may be incompetent. This is a well-settled rule. But we do not think the testimony of the witness, to which, perhaps, objection was intended to be taken, is incompetent. He did not refer to the defendants in the case, but intended to say that it was evident that, from appearances, somebody had entered the room during the night, and this more clearly appears from the statement which follows, that the house had been closed before his family had retired for the night. S. v. Ellsworth, 130 N. C., 690.

The next exception, upon which the defendants rely, relates to the testimony of the justice of the peace, who. stated that Oscar Hudson, who had also been indicted with the other two defendants for the same burglary, had testified in the trial of the case in the Superior Court substantially as he had in the justice’s court before him; but this objection cannot be sustained, because the witness stated what the testimony of Hudson was in the justice’s court. It was, of course, the province of the jury to pass upon the question whether there was any discrepancy or conflict between the testimony of the witness, Oscar Hudson, before the magistrate and his testimony at the trial in the Superior Court, and it appears in this, case that they had full opportunity to do this. The same question, as now presented, was raised in S. v. McLaughlin, 126 N. C., 1080, in which the Court held, it is true, that the bare statement of the justice that the testimony of the witness before him and be*811fore tbe Superior Court was tbe same, was incompetent; but tbe” Court further said that it was competent for tbe justice to state what tbe witness bad testified before him, in order that tbe jury might pass upon tbe question as to whether the testimony in both courts is substantially tbe same. Tbe mere opinion of' tbe witness, expressed in this case, did not prevent tbe jury from passing: upon tbe disputed fact as to tbe correspondence of tbe testimony of tbe witness in tbe two courts. Tbe judge might well have instructed tbe jury not to consider tbe opinion of tbe witness ; but if there was any error in bis failure or omission to do so, we think that, considering this case in all its aspects, it was harmless error.

Tbe State bad introduced evidence tending to establish tbe guilt of tbe defendants, and tbe testimony of tbe defendants themselves tended to sbow tbeir innocence. Tbe State, after tbe defendants bad rested tbeir case, offered in rebuttal, evidence of tbe fact that tbe defendants Hudson and Clement were at Knox’s store, which is not far from McDaniel’s bouse, at 9 o’clock tbe night of tbe burglary. After tbe State bad closed its ease, tbe defendants proposed to prove that, before 9 o’clock on tbe same night, tbe defendants were at Floyd Alexander’s. Tbe court, at first, and in tbe exercise of its discretion, refused to bear further testimony from tbe defendants, but afterwards allowed them to examine George Gordon, one of tbeir witnesses, and they proposed to prove by him that be was at Floyd Alexander’s bouse before 9 o’clock on tbe same night. His Honor thereupon, in tbe exercise of bis discretion, refused to bear further testimony, and tbe defendant excepted. 'The testimony of tbe witnesses Smith and Thompson, who were introduced by tbe State to rebut tbe testimony of tbe defendants, was not new and substantive testimony, but tended merely to contradict tbe testimony of tbe defendants, and it was competent for this purpose. It was, therefore, discretionary with tbe judge whether be would allow additional testimony to be introduced by tbe defendants. Dupree v. Insurance Co., 92 N. C., 417. We think that, in this case, tbe judge merely exercised bis discretion in refusing to bear further testimony, and, besides, tbe evidence offered by tbe defendants did1'not tend to contradict what was said by tbe witnesses Smith and Thompson, in rebuttal, because tbe defendants proposed to show that they were at Floyd Alexander’s prior to- tbe time that it was testified by Smith and Thompson that they were at Knox’s store.

Tbe last exception taken by tbe defendants relates to tbe degree of punishment imposed by tbe judge. Tbe defendants were sentenced to imprisonment for a term of three years. The *812defendants contended that, as tbe value o£ tbe property was not more tiran $20, tbe sentence could not exceed a term of" one year. It is provided by tbe Revisa!, sec. 3506, as follows: “In all cases of larceny, where tbe value of tbe property stolen does not exceed $20, tbe punishment shall, for tbe first offense, not exceed imprisonment in tbe State’s Prison or common jail for a longer term tiran one year. If tbe larceny is from tbe person, or from tbe dwelling-house by breaking and entering in tbe daytime, this section shall have no application. In all cases of doubt, tire jury shall, in tbe verdict, fix tbe value of tbe property stolen.”

Surely, tbe Legislature did not intend that. a. larceny committed by breaking and entering a dwelling in tbe night-time should not be punished as severely as one committed in tbe daytime. It was evidently tbe intention of tbe Legislature, in passing tbe statute, that where there were circumstances of aggravation, tbe value of tbe property should not be considered in passing sentence, that is, where tbe larceny was committed by taking property from tbe person or by breaking and entering a dwelling-house. This is not one of tbe cases where a penal statute should be construed strictly, and thereby defeat tbe manifest intention of tbe Legislature. Indeed, while we have often said that a penal statute should be construed strictly, it should also be construed reasonably, so as to ascertain what was meant by tbe Legislature and to execute its intention. We think it would be giving a strained construction to section 3506 if we should bold that a larceny committed by breaking and entering a dwelling-house in tbe night-time cannot be punished by imprisonment for more than one year, and that larceny from tbe person, or by breaking and entering in the daytime, may be punished by a much longer imprisonment. Revisal, sec. 3500, provides in regard to tbe punishment of larceny, that in cases of aggravation or of hardened offenders, tbe court may, in its discretion, sentence tbe offender to tbe State’s Prison for a period not exceeding ten years.

Upon a careful review of tbe whole case, we find no error in tbe rulings of tbe court or in tbe record.

No error.