#### STATE v. L. J. CAYLOR.

(Filed 20 December, 1919.)

1. Appeal and Error — Objections and Exceptions — Evidence—Instructions— Misstatements — Larceny—Criminal Law.

An inaccurate statement of tbe evidence by tbe judge in bis charge to tbe jury must bave been called to bis attention at tbe time by tbe party complaining to bave afforded bim an opportunity to make whatever correction tbat was necessary, or an exception thereto will not be considered on appeal.

2. Instructions — Larceny—Criminal Law — Subsequent Conduct — Defenses.

An instruction upon supporting evidence tbat if tbe jury found tbat tbe defendant committed the crime charged, whatever be afterwards may bave done was neither a defense or condonement of it in law, is a proper one.

3. Larceny — Indictment—Description—Refinements—Statutes.

An indictment charging larceny of lumber at a certain place, and the name of tbe owner, is sufficient to identify the property, show it was of value, and protect tbe defendant on another charge of tbe same offense, tbe former technicalities or refinement of tbe law being now abolished. Rev., 3254. Tbe procedure being for tbe defendant to apply for a bill of particulars if be desires more definite information. Rev., 3244.

INDICTMENT for larceny, tried before Bay, J., and a jury, at July Term, 1919, of Swain.

Tbe defendant was indicted for tbe larceny of lumber of the value of $200, tbe property of A. T. Dorsey. All of the evidence was not sent up. From tbe little tbat is here, we gather tbat tbe lumber was stacked or piled in different places. Tbe record discloses “tbat tbe lumber (alleged to bave been) stolen, was piled up in tbe barn, in tbe bouse, under tbe porch, under tbe crib shed, and neither was locked, and was near tbe road, where Dorsey’s bands passed and repassed, and where it could easily be seen by anybody passing tbat way.”

Defendant was convicted, and appealed.

*808 Attorney-General Manning and Assistant Attorney-General Nash for the State.

Dillard & Hill, Sherrill & Harwood, and Frye & Frye for defendant.

Walker, J.

We must assume that there was evidence of the defendant’s guilt, as there is no point made as to there being none, the only assignments of error being to the charge of the court and the refusal to arrest judgment, except those that are merely formal.

1. If the judge stated the evidence to the jury incorrectly, the defendant should have called his attention to it, so that it could be corrected at the time. Failing to do so, waives any objection to it, as a similar omission waives the misstatement of a contention. S. v. Spencer, 176 N. C., 709; Bradley v. Mfg. Co., 177 N. C., 153.

2. The court did not err in the instruction that if the defendant had fully committed the crime, what he did afterwards was no defense and no condonement of it in law.

3. The property was sufficiently described in the indictment under our statute, Rev., 3254. The rule is that “where raw material has been changed to some extent by labor, it may nevertheless still be called by the name of the material, provided it has not been wrought into a new substance with a specific name to designate it. When, however, the product has a specific or distinguishing name, that name must be used to describe it.” 25 Cyc., 76. “The description in an indictment must be in the common and ordinary acceptation of property, and with certainty sufficient to enable the jury to say that the article proved to be stolen is the same, and to enable the court to see that it is the subject of larceny, and also to protect the defendant in any subsequent prosecution for the same offense.” S. v. Campbell, 76 N. C., 261; S. v. Nipper, 95 N. C., 653; S. v. Martin, 82 N. C., 672. The Court, in those cases, says that the former nice distinctions and technical refinements of the common-law courts, when punishments were so severe, have been abolished more recently, and especially by our statute mentioned above, because- they frequently defeated the ends of justice. The Court, in S. v. Campbell, supra, adds: “The description must still be in a plain and intelligible manner, and must correspond to the different forms of existence in which the same article is found. In its raw or unmanufactured state it may be described by its ordinary name, but if it be worked up into some other farm, etc., when stolen, it must be described by the name by which it is generally known.” Justice Reads says, in S. v. Harris, 64 N. C., 127, that “the object of describing property stolen by its quality and quantity, is that it may appear to the Court to be of value. The object of describing it by its usual name, ownership, etc., is to enable the defendant to "make his defense, and to protect himself against a second conviction. *809In tbe case under consideration, tbe substance of tbe charge is stealing flour — fifty pounds of flour — from wbicb it is apparent tbat it was of value; and tbe exact quantity and value need not be proved. Tbe objection made is tbat it was a 'sack of flour’; by wbicb we understand flour in a sack or bag. If tbe defendant stole tbe flour, it makes no difference wbetber it was in a sack, or bag, or box, or lying about loose. It was of value, and its character was not changed. An indictment charged tbe stealing of 'a parcel of oats’; held to be sufficient. So another indictment charged tbe stealing of a 'bog’; tbe proof was a sboat; held to be sufficient.” See S. v. Clark, 30 N. C., 226.

We are of tbe opinion tbat, within tbe principle prevailing in such cases, tbe description of the article stolen was sufficient. It was laid in tbe name generally applied to it in tbe trade, and in common parlance. It does not appear to have gone beyond tbe process of manufacture, and to have been worked into any new form wbicb has a specific designation or name. Tbe defendant could not have been misled or disconcerted in bis defense, or put to any disadvantage. If be desired more particular information, be should have applied for a bill of particulars. Bev., 3244; S. v. Brady, 107 N. C., 822.

Chief Justice Ruffin, in S. v. Moses, 13 N. C., 464, said: “The law was certainly designed to uphold tbe execution of public justice, by freeing tbe courts from those fetters of form, technicality, and refinement wbicb do not concern tbe substance of tbe charge, and tbe proof to support it. Many of tbe usages of tbe law bad before called nice objections of this sort a disease of tbe law, and a reproach to tbe bench, and lamented that they were bound down to strict and precise precedents, neither more brief, plain, nor perspicuous than tbat which they were constrained to reject. In all indictments, and especially those for felonies, exceptions extremely refined, and often going to form only, have been, though reluctantly, entertained. We think tbe Legislature meant to disallow the whole of them, and only require tbe substance, that is, a direct averment of those facts and circumstances which constitute tbe crime, to be set forth.”

Tbe Court, in S. v. Smith, 63 N. C., 234, held tbat our statutes have received a very liberal construction in accordance with their evident purpose to relieve our criminal procedure of many of tbe ancient technicalities wbicb have become obsolete and useless, and ''its efficacy had reached and healed numerous defects in tbe substance, as well as tbe form of indictments,” and tbat tbe courts have looked with no favor on technical objections and nice distinctions, wbicb are not conducive to an efficient and practical administration of tbe law — and tbe Legislature has been moving fast in tbe same direction. “The current is all one way, sweeping away by degrees 'informalities and refinements,’ until a plain, in*810telligible and explicit charge is all that is now required in any criminal proceeding.”

The defendant must have understood very clearly the charge in the bill of indictment, and certainly was not unprepared to defend himself against it, and we should obey the statute and not permit what Lord Rale and Chief Justice Ruffin called an “unseemly nicety” to defeat the ends of justice. S. v. Moses, supra, at pp. 468, 469; S. v. Ratliff, 170 N. C., 707.

We are unable to find any error in the case or record.

No error.