Opinion
(January Term, 1878.)
Indictment — Larceny — Evidence — Judge's Charge.
On a trial for larceny, where the defendant who was charged with stealing a hog contended that certain pork found in his house was part of a hog of his own, and two of his children testified that the defendant had killed a hog of his own the day before the pork was found, it was error for the court to instruct the jury "that there was no evidence that the hog was the property of any one except the prosecutor."
LARCENY, tried at Fall Term, 1877, of RICHMOND, before Seymour, J.
The defendant was charged with stealing a hog, and that part of the case bearing upon the point decided by this Court is as follows: "The defendant contended that the pork (which was found in defendant's house by virtue of a search warrant obtained by the prosecutor) was part of a hog of his own, and introduced two of his children who testified that he had killed a hog of his own the day before." His Honor charged the jury that they must be satisfied that the pork found in defendant's possession was stolen, that defendant was connected with the stealing, and that the stolen hog was the one lost by the prosecutor. After retiring, the jury came into court for further instructions; and one of the jury stated that they had agreed upon the two first points, but that one of them doubted whether the hog was proved to be the property of the prosecutor. In reply, his Honor stated that the question was one of fact which they must determine, and after recapitulating the evidence, added: "And there is no evidence that the hog was the property of any one except the prosecutor." To this last remark the defendant excepted. Verdict of guilty. Judgment. Appeal by defendant.
(478) Attorney-General for the State.
No counsel for the defendant.
Fresh pork, cut up and unsalted, being found in the house of defendant, and the question being whether it was his own meat or whether he had stolen the hog out of which it was made, and there being no evidence tending to show that he had stolen the hog out of which it was made, the defendant introduced two members of his family who swore that the defendant had killed one of his own hogs for pork the day before. His Honor instructed the jury that there was no evidence that the meat found was the meat of the defendant. In this there was error.
PER CURIAM. Venire de novo.