{
  "id": 8698143,
  "name": "STATE v. PLESS GAITHER",
  "name_abbreviation": "State v. Gaither",
  "decision_date": "1875-01",
  "docket_number": "",
  "first_page": "458",
  "last_page": "460",
  "citations": [
    {
      "type": "official",
      "cite": "72 N.C. 458"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:28:46.712943+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. PLESS GAITHER."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nThe facts stated produce a strong impression on our minds that the defendant ought not to have been convicted He lived in Litaker\u2019s family, and both Litaker and his wife-told him that the chickens were disturbing the garden, and that he must catch them ; and they claimed the chickens as their own. The defendant did catch them in the day time when they were \u201c squalling,\u201d and carried them to Litaker\u2019s kitchen, and gave them to the cook ; and Mrs. Litaker ordered them to be cooked ; and they were cooked, and were eaten at Litaker\u2019s table. The only fact that tends to show- evil conduct on the part of the defendant \u00bbis that he told the cook that the chickens resembled Mrs. Groner\u2019s, and he believed they were hers. The jury however, eonvicted him, and their verdict must stand unless we can see some error in law, or legal influence upon the trial. We think there was such error.\nHis Honor charged the jury, that before they could convict, they must find that the defendant took the chickens \u201c with a felonious intent.\u201d That is true; but what is a felonious intent was the question, and he ought to have explained that to the jury; but instead of doing so, he continued his charge, \u201cthat the question of intent had been fully discussed by counsel, and it was a question for them to settle.\u201d\nNow, that was not a question for them to settle. What is meant by feloneous intent., is a question for the Court, and after the Court defines that, then it is fir the jury to say whether he he had such intent. But here the counsel disputed and \u201cfully discussed\u201d. \u2014 the defendant\u2019s counsel, as we may suppose, insisting that there must be clam et secrete/ and the State\u2019s counsel insisting that secresy was not necessary; and his Honor leaves it the jury to say which of the lawyers is right.\nThere was not only error in omitting to charge as above, but there was error in a subsequent part of his charge in response to the prayer of defendant\u2019s counsel. His Honor charged, that if the defendant took the chickens with the intent to deprive Mrs. Groner of her property, or ate them, he was guilty,\u201d &c. It cannot be maintained, that if one takes the property of another and eats it, that he is guilty of larceny. It may be trespass, or mistake, or larceny, according to circumstances ; it is not necessarily larcett}'.\nPee 0 URIAH. Venire de novo.",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Montgomery, for defendant.",
      "Attorney General Hargrove, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE v. PLESS GAITHER.\nIn t-lie trial of a defendant for Larceny, a charge from the Court, that the jury must find, that the defendant took the property alleged to bo stolen, \u201cwith a felonious intent,\u201d and that \u201cthe qeestion of intent had been fully discussed by counsel, and it was a question for them to decide, without at the time explaining to the jury what is meant by a \u201cfelonious intent,\u201d is error, and entitles the defendant, if convicted, to a new trial.\nThe question of what is meant by a \u201cfelonious intent\u201d is one for the Court; its existence at a particular time is for the jury to say.\nIndictment, larceny, tried before his Honor, Judge Fchenck at the Fall Term, I8J4, of the Superior Court of Cabakeus county.\nThe defendant was charged with stealing Mrs. Mary Groner\u2019s chickens, and on the trial in the Court below, the following facts were established.\nThe defendant lived with a Mr. Li taker, whose premises adjoined those of Mrs. Groner, the prosecutrix. She, Mrs. Groner, had a flock of some twenty or more chickens, and about the 1st March, her chickens began to disappear, one and sometimes two at a time. About this time, she noticed a trap or box near Litaker\u2019s hog pen.\nEarly one morning, the defendant brought two chickens to Litaker\u2019s cook to clean, saying that he believed that they were Mrs. Groner\u2019s chickens. Mrs. Li taker claimed the chickens, and told the cook to clean and cook them, which the cook did and the chickens were eaten at Litaker\u2019s table. The defendant said he had caught them in a box which he had baited. He was seen to take the chickens from the trap and convey them towards the house, by a neighbor, whose attention was directed towards the place by the squalling of the chickens. The chickens troubled Litaker\u2019s garden, who told defendant to catch them.\nOn the trial, his Honor charged the jury, that they could not convict the defendant unless they were satisfied that the chickens stolen were the property of Mrs. Groner, and that the defendant took them with a felonious intent. That the question of intent had been fully discussed by the counsel and it was a question for them to settle upon all the testimony. Defendants counsel asked the Court to charge the jury that if defendant took the chickens under Mrs. Litaker\u2019s order, for her, or to keep them out of the garden, he was not guilty.\nThe Court in response told the jury that if defendant took the chickens with the intent to deprive Mrs. Groner of them or ate them that he was guilty, no matter whethers Mrs. Lita-\u2019 ker ordered it,or not, That the jury were the sold judges of the intent, with which the taking was done.\nA verdict of guilty was rendered by the jury, judgment. Appeal prayed and granted.\nMontgomery, for defendant.\nAttorney General Hargrove, for the State."
  },
  "file_name": "0458-01",
  "first_page_order": 468,
  "last_page_order": 470
}