Opinion
June Term, 1828.
From Wayne.
1. It seems that a witness may speak of information derived from a negro, upon which acts are predicated, in explanation of those acts.
2. One who is privy to a petty larceny before the fact is a principal.
THE defendant was indicted for petty larceny in stealing a bag of cotton.
No counsel for appellant.
Devereux, in place of the Attorney-General, for the State.
On the trial a witness stated, without any objection on the part of the defendant, that he was informed by a negro that the cotton was in a house on the premises of the defendant; that he searched that house and found the information of the negro to be correct.
His Honor, Judge Strange, informed the jury that if they believed from the testimony that the stealing was the joint act of the defendant and the negro who had given the information, their verdict ought to be for the State; that if they believed it to be the act of the negro alone, but committed under any previous concert with the defendant, they ought also to find the defendant guilty. But if they believed that the negro had taken the cotton without any previous concert with the defendant, they ought to return a verdict for the defendant.
The defendant was convicted, and moved for a new trial, first, because the witness had given in evidence the information of the negro; and, second, because of error in the charge of the judge.
The conversation with the negro, or rather the fact that the negro directed the witness to a particular place to search for the cotton, is a circumstance of which the witness might speak, especially as it was not objected to. I wish to express no opinion as to what would be the case if the (519) evidence had been objected to. I rather think that the isolated fact is proper, if for no other purpose, to explain the motive of the witness. I cannot see how it could affect the defendant otherwise than to support the credit of the witness by showing that he had a motive for his conduct. In that view it went to show, not that the cotton was in the house, but that the witness had been told it was there. As to the other parts of the case, there is no doubt but the opinion of the court was correct. All who are concerned in a petty larceny are principals. Whoever procures a felony to be done, although it be by the instigation of a third person, is an accessory before the fact; and that which in felony makes a person an accessory before the fact in petty larceny and misdemeanors makes him a principal.
PER CURIAM. Judgment affirmed.
Cited: S. v. Cheek, 35 N.C. 121; S. v. Gaston, 73 N.C. 94; S. v. Stroud, 95 N.C. 630.