Opinion
(Filed 21 December, 1927.)
APPEAL by defendants from Sink, Special Judge, at July-August Term, 1927, of SWAIN. New trial.
Attorney-General Brummitt and Assistant Attorney-General Nash for the State.
McKinley Edwards for defendants.
Indictment for larceny. From judgment on a verdict of guilty defendants appealed to the Supreme Court.
Upon the call of this case for argument on defendants' appeal to this Court, the Attorney-General confessed error upon the record. An examination of the record discloses that there was error in the instruction of the court to the jury, which was as follows: "If you believe the evidence and are satisfied beyond a reasonable doubt, you will find defendants guilty."The evidence tended to show that defendants, in the day time, got three bushels of apples from a tree on the land of the State's witness and carried them away. It was error for the court to fail to submit to the jury, with proper instructions, the question of felonious intent. S. v. Eunice, ante, 409. For this error defendants are entitled to a
New trial.