#### STATE v. HENRY McCOY and JESSE LAMBERT.

(Filed 21 December, 1927.)

Appeal by defendants from Sink, Special Judge, at July-August Term, 1927, of SwaiN.

New trial.

Indictment for larceny. From judgment on a verdict of guilty defendants appealed to tbe Supreme Court.

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

McKinley Edwards for defendants.

Pee Oubiam.

Upon tbe call of this case for argument on defendants’ appeal to this Court, tbe Attorney-General confessed error upon tbe record. An examination of the record discloses that there was error in tbe instruction of tbe court to tbe jury, which was as follows: “If you believe tbe evidence and are satisfied beyond a reasonable doubt, you will find defendants guilty.” Tbe evidence tended to show that defendants, in tbe day time, got three bushels of apples from a tree on tbe land of tbe State’s witness and carried them away. It was' error for tbe court to fail to submit to tbe jury, with proper instructions, tbe question of felonious intent. S. v. Eunice, ante, 409. For this error defendants are entitled to a

New trial.