#### STATE v. THOMAS LUNSFORD et al.

(Filed 3 January, 1919.)

1. Appeal and Error — Evidence—Instructions—Harmless Error.

Error committed by the trial judge in permitting the solicitor to argue to tbe jury on a trial for larceny, that evidence admitted only for the purpose of impeaching the defendant was substantive evidence, is cured by an instruction that the evidence could only be considered by them for the purpose of impeachment.

2. Larceny — Evidence—Substantive Evidence — Impeaching Evidence — Trials —Questions for Jury.

Where the evidence tends to show larceny of a certain amount of money by the uncle of the prosecuting witness, and that another uncle proposed to the defendant to make it up, as it was a family affair, to which no reply was made, but the defendant’s uncle procured and paid to the prosecuting witness a part of the amount, the balance being found and restored under circumstances tending to connect the defendant therewith, and that the defendant had agreed that a third person should pay the money back to the prosecuting witness, which plan was not followed: Held, under the circumstances of this case there was sufficient circumstantial evidence to connect the defendant with the return of the money by his uncle, and to make it competent as substantive evidence, and also impeaching evidence as it tended to prove an attempt to compound a felony.

*118IndictmeNt of tbe defendant and bis wife, Nettie, for tbe larceny and receiving of twenty-two dollars, tbe property of •'Will Allmond. The wife, Nettie, was acquitted and tbe defendant was convicted and appealed from tbe judgment upon such conviction.

In tbe early part of 1918, Will Allmond and bis brother Tester spent the night at the bouse of tbe defendant, who was an uncle of both boys, tbe defendant and bis wife being absent. Will bad $34 in a purse which was there in tbe possession of bis brother Vester. Tbe next morning tbe defendant, Tom Lunsford, came. While he was there, be and Vester counted tbe money and Tom told Vester to give it to Will, which was done. Tom then returned to Calvin Lunsford’s, where be and bis wife were nursing a sick child, and Vester Allmond soon after. Will All-mond remained at Tom Lunsford’s all of that day. Tom and bis wife, Nettie, returned home in tbe afternoon and Will spent tbe night with them. Between 10 and 11 o’clock that night Will, who bad not been asleep, saw Tom and Nettie Lunsford take tbe money out of tbe breast-pocket of bis coat, count it, and take all of it except $12. He beard them say, “We will leave him $12.” This is tbe substance of tbe testimony of tbe prosecuting witness, Will Allmond.

Allmond got all of bis money back, as follows: Eight dollars advanced to Lewis Lunsford by Abernathy, the storekeeper; $10 said to have been found by Jake Lunsford at tbe fence about bis father’s place; $3 claimed to have been found by tbe defendant Tom Lunsford at tbe woodpile tbe morning after tbe alleged theft, and $1 said to have been picked up by tbe son of tbe defendant at *tbe branch and turned over to tbe magistrate, Parker. All this finding of money, except tbe $3 which Allmond says be saw tbe defendant drop, was after tbe arrest of tbe defendants.

Lewis Lunsford testified in behalf of the defendant, and on cross-examination tbe State was permitted to show that'he tried to get tbe matter “bushed up,” and that be got Mr. Abernathy to return $8 of tbe money to Allmond, and tbe defendant excepted.

Both defendant. and Lewis testified tbe defendant knew nothing of tbe return of tbe money. Tbe court admitted tbe evidence for tbe purpose of impeachment, but did not stop tbe solicitor, who argued that tbe return of tbe $8 was substantive evidence of guilt, although requested to-do so, and tbe defendant excepted.

Tbe court, however, referred to the evidence of tbe return of tbe $8 in tbe charge, and instructed the jury as follows: “I instructed you before, gentlemen, when the evidence was admitted, that it was admitted to show whether there was any bias or feeling, and as to whether they 'should believe him or not, and to show whether or not be bad sufficient ■interest in tbe matter to swear falsely, and could not be used as a circumstance against these defendants because they would not be respon*119sible for anything be did, and no circumstance or act or conduct that tbe uncle did in giving tbe money back, unless done at tbeir request and for them, could be used as any circumstance against them, and there is no evidence in tbe case tending to show that be did it at tbeir request.”

Attorney-General Manning and Assistant Attorney-General Nash for State.

J. H. McCall and Dillard & Hill for defendant.

AlubN, J.

If his Honor committed error in failing to stop tbe solicitor when be argued that tbe fact that Lewis Lunsford returned $8 to the prosecuting witness was substantive evidence of the guilt of tbe defendant Tom Lunsford, this error was cured by tbe subsequent explicit charge to tbe jury that the evidence could not be considered except for the purpose of impeaching tbe witness, unless tbe money was returned at tbe request of tbe defendant, and that there was no evidence of such request. Bridgers v. Dill, 97 N. C., 222; S. v. Crane, 110 N. C., 530; Wilson v. Mfg. Co., 120 N. C., 95; Michie’s Dig., V. 1, p. 758.

Tbe evidence itself was clearly competent for tbe purpose of impeachment, because when considered in connection with tbe evidence that tbe witness was trying to settle tbe matter out of court and prevent a criminal prosecution, it tended to prove an attempt to compound a felony. We are also of opinion it was fit to be considered as substantive evidence of guilt.

It is true Tom and Lewis testified that Tom knew nothing of tbe return of tbe money, but tbeir evidence does not conclude tbe matter. If it did we would have to order tbe discharge of tbe defendant because be swore be did not steal tbe money. There is, however, circumstantial evidence tending to connect tbe defendant with tbe return of tbe $8.

Tom and Lewis are brothers and tbe prosecuting witness tbeir nephew. There is evidence that tbe defendant said to tbe prosecutor some time before tbe trial, “Make it up,” and Lewis said to him in tbe presence of tbe defendant a week before tbe trial, “Go home and let’s make it up. It’s kinfolks, Let’s make it up.” This statement of Lewis was apparently acquiesced in by tbe defendant as be remained silent in tbe presence of a proposition to “make it up.” Tbe defendant testified that Lewis .first came to him about making it up, and while be did not agree to do so be did agree to leave it to Mr. Abernathy to pay the prosecutor;

It was also in evidence that one of tbe sons of tbe defendant found ten one-dollar bills in a fence corner near defendant’s bouse, that another son found one dollar in a branch near by, and another son found on tbe ground three one-dollar bills which defendant dropped from bis pocket; that these different amounts were returned to tbe prosecutors,'making, *120with the $8 paid by Lewis, $22, the amount stolen. This at least justifies the argument that Tom and Lewis were trying to stop the prosecution by the return of the money, and that Lewis was the active agent.

No error.