#### STATE v. WILLIAM REID PANNIL, GARLAND WATT, and CHARLES W. CURRIE.

(Filed 2 November, 1921.)

1. Criminal Law — Larceny and Receiving — Severance—Motions—Court’s Discretion — Appeal and Error.

Where tbe indictment charges several defendants with larceny or receiving goods from the warehouse of the prosecutor in a connected manner, a motion to sever the trials is addressed to the sound discretion of the trial judge and his refusal of the motion is not reviewable on appeal.

2. Criminal Law — Larceny and Receiving — Evidence—Intent—Knowledge.

Where there is evidence that the warehouse of the prosecutor was broken into in the night and a large quantity of oats was taken therefrom, as charged in the bill of indictment, and wagon tracks led therefrom to the barns of the several defendants, wherein bags of oats were found early the next morning, with marks thereon tending to identify them as the property of the prosecutor, evidence that bags of “sweet feed” were also found there with identifying marks is competent as tending to show ownership of the goods and knowledge and intent upon the two counts in the bill of indictment of larceny and receiving of the oats.

3. Appeal and Error — Objections and Exceptions — Instructions—Recital of Evidence.

The recital of the testimony in the case in the summing up by the judge to the jury is an appeal to their recollection of the evidence, and where a party to the action thinks that this has inaccurately been done, he is deemed to háve waived his right to except after the case has been submitted to the jury, and he has failed to call the matter to the attention of the judge at the time, and when thereafter the exception has been taken, it will not be considered on appeal.

4. Appeal and Error — Objections and Exceptions — “Broadside Exceptions,”

A general or “broadside” exception to the charge of the judge to the jury will not be considered on appeal.

Appeal by defendant from Webb, J., at tbe May Term, 1921, of ROCKINGHAM.

Tbe defendants were convicted of larceny of a large quantity of oats, tbe property of Nello Teer, and from tbe judgment upon sucb conviction appealed to tbis Court.

Exceptions seven and nine were directed to tbe judge’s refusal to give judgment as of nonsuit at tbe conclusion of tbe State’s evidence, and again at tbe conclusion of all tbe evidence.

Tbe prosecuting witness, Nello Teer, was a contractor working upon tbe public roads of Rockingham County, and owning a number of mules and borses used in tbis work. He kept a warehouse in tbe town of Reidsville in which be stored a large quantity of oats and sweet feed for *839Ms stock, and bad missed oats for some time, about 300 busbels. Besides tbe ordinary fastenings, be nailed up tbe windows to tbe warehouse, and put a bar across^ tbe door. On tbe nigbt of 11 December, 1920, tbe warehouse was broken into and fourteen five-bushel bags of oats were taken out. About 7 o’clock next morning be discovered tbe loss and secured two policemen of tbe town to accompany him with a search warrant in bis attempt to follow tbe trail of tbe thief or thieves. A one-horse wagon bad been backed up to tbe platform, and though it bad rained tbe nigbt of tbe theft, they followed tbe track of this wagon along a devious course, and first to tbe barn of tbe defendant Currie. There they found a box of oats, and certain sweet feed bags which bad Teer’s name on them. Tbe box of oats contained ten or fifteen busbels, and empty bags were banging up on a wire across tbe corner of tbe feed room. There were a dozen or more sweet feed bags with Teer’s name upon them, and eight or more oat bags with bis stock number on them. His stock number was Z-72, tbe 72 indicating tbe grade of tbe oats, and tbe Z, it is contended, tbe point to which they were shipped. Tbe wagon track was then followed from Currie’s barn to tbe barn in which tbe other two defendants kept their horses. All of tbe defendants ran drays in tbe town of Reidsville. He found in Garland Watt’s feed-room three full bags and one half-full of oats. Tbe bags bad tbe stock number Z-72 on them. In another department in tbe barn there was a box that bad ten busbels or more of oats in it. Several empty bags were found on that box which contained also tbe stock number. He saw Garland Watt’s horse after Garland was arrested; observed tbe horse’s track, and it was very much like tbe track made by tbe horse attached to tbe wagon: “So much like it that I thought it was tbe same track made by tbe shoe.”

Tbe defendant Pannill occupied one of tbe departments of a barn, in which Garland Watt bad another. There were ten or twelve busbels of these oats in Will Pannill’s department. Will’s father, Tom Pannill, and another man bad horses in this barn also. None of tbe defendants bad worked for Teer, and be bad sold no oats or sweet feed to any of them. When bis oat bags were emptied, be bundled them up and shipped them to T. A. Jennings & Sons, Lynchburg, Va.

The defendants claimed that they bad bought these oats from one Will, or Brer, Garland. Tbe defendant Currie testified that Will Garland sold him two bags of sweet feed at $2.SO a bag. He did not see Will Garland any more, but when be went in tbe barn tbe morning of tbe search tbe barn was filled with tbe oats and tbe sacks were banging where be bad other sacks bung. He knew that tbe price of sweet feed on tbe market was from $3.40 to '$3.60. He did not pay Will Garland for oats or sweet feed. Garland Watt claims that be bought two bags of sweet feed and one bag of oats from Will Garland on tbe same day *840that Currie claimed to have bought his. For the three bags he was to pay Will Garland $7.50. The oats were put in his barn that night, without his knowledge. Will Pannill also claimed to have bought two bags of oats, at $2.50 a bag, from Will Garland, and found them in the barn the next morning, the morning of the search, when he went to feed. He did not pay Will Garland for them. It seems from the testimony that Will Garland had disappeared.

Defendants appealed from the judgment upon the verdict of guilty.

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

J. M. Sharp and J. B. Joyce for defendants.

Walicee, J.,

after stating the case: If we follow the rule that only the State’s testimony, with so much of the defendant’s sustaining it, is to be considered, on a motion for judgment as of nonsuit, we are of the opinion that the evidence is amply sufficient to sustain the verdict, and the motion for a nonsuit was properly overruled.

Exception one was directed to the judge’s refusal to sever the trials of the three defendants. This, however, was in the sound discretion of the court. S. v. Southerland, 178 N. C., 676, where it was said to have been frequently held that a motion for a separate trial of defendants charged in the same bill of indictment is a matter that must necessarily be left to the sound discretion of the trial judge. To undertake to review such rulings is impracticable, and would result in great delay in the disposition of criminal actions. It is only when there appears to have'been an abuse of such discretion that this Court will entertain such exceptions and review the rulings of the trial judge. Nothing of that nature appears in this record, citing S. v. Dixon, 78 N. C., 558; S. v. Parrish, 104 N. C., 689; S. v. Hastings, 86 N. C., 597; S. v. Haney, 19 N. C., 390; S. v. Murphy, 84 N. C., 742. See, also, S. v. Finley, 118, N. C., 1161; S. v. Oxendine, 107 N. C., 783; S. v. Gooch, 94 N. C., 982. There was manifestly no abuse of discretion by the judge.

Exceptions two, three, four, five, and eight were directed to the testimony as to the sweet feed lost and the sweet feed bags with Teer’s name, or number, on them in the barns of defendants. This evidence, however, tended to show knowledge and intent upon both the counts in the bill of indictment. The Court has recently discussed this question very fully in S. v. Simons, 178 N. C., 679, and in S. v. Stancill, ib., 683, citing all the cases. It was held in S. v. Adams, 138 N. C., 693: “True it is that evidence as to one offense is not admissible against a defendant to prove that he is also guilty of another and distinct crime, the two having no relation to or connection with each other. But there are well defined *841exceptions to tbis rule. Proof of another offense is competent to show identity, intent, or scienter, and for other purposes,” citing S. v. Murphy, 84 N. C., 742; S. v. Parish, 104 N. C., 692; S. v. Weaver, 104 N. C., 761; S. v. Walton, 114 N. C., 783, and S. v. Graham, 121 N. C., 623. So, in S. v. Stancill, 178 N. C., 686, where there is a full discussion of the subject, with citation of the authorities, it is said there, at least substantially, that the testimony as to theft of the Wilkinson tobacco was offered merely to show the felonious intent with which the defendants stole this tobacco, and not to prove the accusation substantively. It was sufficiently connected with the main charge to-render it competent for this purpose. It was all taken to Raymond Stancill’s, the common storehouse for the loot of these defendants. It was but a part of a series of transactions carried out in pursuance of the original design, and it was contemplated by them in the beginning, that they should plunder the tobacco barns in the neighborhood, and this was one of them. The jury might well have inferred this common purpose from the evidence. Robbing Wilkinson was a part of the common design, and done in furtherance of it. Proof of the commission of other like offenses to show the scienter, intent, or motive is generally competent when the crimes are so connected or associated that this evidence will throw light upon that question. So it is with the oats and sweet feed in this in-stanée, the two cases being alilfe.

The one inference to be drawn from the evidence is that defendants stole the oats and sweet feed in the night time under the cover of darkness, as the theft was discovered early in the morning, and the warehouse was locked and bolted the night before. The jury did not believe the story about the defendant’s buying the goods at a greatly reduced price from Will Garland, for, if they had believed it, they would have convicted the defendants upon the second count in the indictment for receiving the goods knowing them to have been stolen, there being ample evidence to warrant it, because the dealing with Garland being necessarily in the night time, and the price asked being considerably below the market quotation, cast grave suspicion on the whole transaction. It was an incredible story at the best, and the jurors were not in a credulous mood. But they concluded that Garland was a mythical man, and their story about him a pure fabrication, and consequently convicted them of the principal felony, which verdict is abundantly supported by the testimony.

Exceptions ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, and seventeen were addressed to the judge’s recital of the evidence. If there was any error or shortcomings in it, his attention should have been called to it at the time. A misrecital of the testimony by a judge in'his summing up to the jury is no ground of new trial; such summing up *842being an appeal to tbeir recollection. It is tbe right of counsel, in a proper manner and at a proper time, to correct such mistake by calling tbe attention of tbe judge to it, in tbe presence of tbe jury, before tbe cause is finally committed to tbem; and a failure tben to make tbe correction is a waiver of all right to make it thereafter. Wheeler v. Schroeder, 4 R. I. Reports (vol. 1), 383.

Exception eighteen relates to tbe following clause in tbe judge’s charge: “And they admit, that is, Currie and Pannil, that they purchased some oats from Garland tbe afternoon before.” As a matter of fact, Pannil and Watt admitted that they purchased oats from Garland tbe afternoon before. “Currie denied that be bought any oats, but claimed to have bought two bags of sweet feed from Garland.” This, however, was a lapse of tbe tongue, and an error in tbe recital of tbe testimony, which should have been brought immediately to tbe attention of tbe court. Tbe judge told tbe jury expressly that “You will try this case solely upon tbe evidence,” and tbe judge himself, in tbe very next sentence, corrects bis error in regard to Currie. After reciting tbe contentions of tbe State and of tbe defendants, be said to tbe jury, “When you go out to consider your verdict, you will discard everything except tbe evidence in this case.” This exception is covered fully by what has been said above, in regard to exception four, and including two to five and eight, and tbe authorities there cited are applicable here.

Exceptions nineteen and twenty were directed to tbe recital of tbe State’s contentions, while twenty-one and twenty-two relate to tbe recital of tbe defendant’s contentions. In tbe state of tbe record these cannot be assigned as errors here, and what we have said above as to exceptions ten to seventeen, and tbe authorities there cited, apply equally in this instance.

Exception twenty-three has been sufficiently considered in our discussion of exceptions seven and nine.

Exception twenty-four was directed to what was a clear and accurate statement by tbe judge of tbe reasons why tbe evidence, in regard to sweet feed and tbe bags, was admissible, and at tbe same time a warning to tbe jury, that defendants were not indicted for stealing bags of sweet feed, but bags of oats. Tbe evidence was admitted simply as a circumstance to be considered by-the jury when weighing tbe evidence as to whether or not tbe defendants were guilty of tbe larceny of oats or guilty of receiving tbem, knowing at tbe time that they were stolen.

Exception twenty-five was a general or “broadside” exception to tbe charge, and as such will not be considered by this Court.

This was a bold robbery, done with deliberation, but tbe defendants were so hurried in its commission, or for some other reason, they failed to conceal or remove tbe marks of identification on tbe bags, and it *843makes little difference whether they were oat bags or sweet feed bags. Those that were marked were found with other bags of a kind taken from the warehouse. They were there the night of the robbery, and they were not there the next morning when it was first discovered that the house had been entered and rifled of a part of its contents. The marked bags identified those unmarked, because (noscitur a sociis) they are known by their companions as a man is said to be known by the company he keeps. What difference does it make whether the mark on the bags was the prosecutor’s name or his stock number, so that it identified the bags as the property which had been stolen from him. The numbers were as sufficient for the purpose as his name, but defendants, if they saw them on the bags, did not appreciate their significance and were thus entrapped by their own ignorance, which not infrequently happens in such cases.

The substantial and pivotal objection to the trial of the case below is based upon a misapprehension concerning the competency and relevancy of the testimony, as to marks on the sweet feed sacks, which we have shown was clearly admissible. That is sharply made the focus of criticism, and all possible emphasis laid upon it, as not only important but as being prejudicial to the defendants. We have met this objection sufficiently, and no more comment is required.

The other exceptions, including those to the instructions, are without any real merit. The charge was full and fair to both sides, and is not subject to the objections which are made to it. When the judge correctly ruled upon the evidence, the issue became very largely one of fact, and there was an abundance of evidence to support the verdict.

We can find no error in the case or record.

No error.