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The State Lawson.

The former lived about three-quarters of a mile from Petre, and Lawson lived about a mile distant in the opposite direction. One of the party went to apprehend George, and two others after Lawson. George was brought first and tied at the house of the prosecutor, and soon afterwards Lawson was produced.

The party endeavored by threats, and by severe whipping, to extort from George a discovery of the stolen property. During a pause in this whipping Lawson said: If you will not whip me, and will go with me, I will show you the property. The party who had apprehended Lawson had not tied him. They found him at work, and he denied all knowledge of the burglary, and denounced, in strong terms, any one that would rob such a man as old Mr. Petre. He walked with the party to the house of Petre, and was not more than fifteen yards distant from where George was confined, but was the object of very little attention, until he made the remark above recited. Nether threats nor promises had been made to him. After he made the offer, two of the party went with him, and, at the distance of about four hundred yards from the house of the prosecutor, he showed them the stolen property, concealed under a covering of brush. As they returned with the goods, Lawson, without any incitement, stated voluntarily, that he and George had broken open the window of the room from which the goods were taken, with an axe and iron wedge; that George had entered through the window and handed him the property at the window; that George kept nothing but one bale of cotton-yarn, and he, Lawson, undertook to conceal the remainder of the property until he could sell it for their joint benefit.

The evidence of the remarks made by Lawson previous to his going for the stolen property, and of the statement made by him after it was found and the party was returning, was objected to by the counsel for the prisoner, but was admitted by the court. And for this the prisoner excepte.......

The State v. Marshall..

Attorney General, for the State.

Wilson, for the prisoner.

PEARSON, C. J. The case of The State v. George, 5 Jones, 233, is one precisely in point here, and we adopt the opinion delivered in that case as our opinion in this.

Every thing that the prisoner said and did, after he had witnessed the torture inflicted upon George, was "with the fear of the lash before his eyes."! The party had assembled with a determination to find out the truth by means of the lash, forgetful of the rule,-"The end does not justify the means."

There is error. This opinion will be so certified.

PER CURIAM.

Venire de novo.

THE STATE v. WILLIAM MARSHALL.

The prisoner, a stranger to the prosecutrix, who was a girl of between 13 and 14 years of age, had met her upon her way from a neighbor's, and offered to go home with her, a distance of less than a mile; his offer being accepted, he dismissed some children who had been acting as her guides; Held, that the girl's following him out of the road for a short distance into the woods; as also her not stopping upon her way home, after the alleged rape had been committed, to tell her aunt of it (she having passed the aunt's house and seen her)—did not warrant a prayer for a charge to the jury that the evidence of the prosecutrix should be disregarded altogether.

In order to confirm the evidence of a witness, it is competent to ask whether it does not concur with statements previously made by the witness, out of court. (The case of The State v. George, 4 Ire, 324, cited and approved.)

RAPE, tried at Spring Term, 1866, of McDowell Superior Court, before Shipp, J. From the judgment in the case, the defendant appealed to this court.

The State v. Marshall.

The person upon whom the crime was committed, Sarah Rooker, was a girl of between 13 and 14 years of age, and stated that having been upon a visit at a neighbor's house in Rutherford county, about 3 or 4 o'clock she started to her father's house, which was a mile or so distant. That for company and as guides she took with her two children of the neighbor. That at about half a mile from the house they met the prisoner, who proposed to go home with her, and sent the children back. They proceeded on the road towards the home of the witness, he leading and she following, until they came to the head of a hollow or ravine, when the prisoner turned off from the road, and witness followed. That very soon after they left the road, the prisoner by violence and threats committed the crime in question, and having led her back to the road, threatened that he would kill her if she told what had occurred. She then went home, passing the house of an aunt, (whom she saw,) but did not stop or tell her aunt what had happened. Immediately upon reaching home, she told her mother, who, upon examination, found marks of great violence upon her person.

The mother was examined upon the trial, and having been asked by the Solicitor whether the statement made by Sarah at the trial was the same as that made upon her return home, stated that it was.

What else was material at the trial and in the charge of his Honor appears in the opinion of the court.

Attorney General, for the State.

No counsel in this court for the defendant.

READE, J. The prisoner moved for a new trial upon three grounds:

1. That inasmuch as the witness Sarah Rooker, upon whom the rape was charged to have been committed, did

The State v. Marshall.

not disclose the fact to the first person whom she saw after the occurrence, her testimony was to be disregarded altogether.

2. That inasmuch as Sarah Rooker followed the prisoner into the woods, it was conclusive evidence of her assent to the act.

3. That it was error to allow the State to support the testimony of the said Sarah Rooker, by proving that she gave the same account of the transaction when she first disclosed it to her mother.

As applicable to the first two grounds his Honor charged the jury, "that if the witness Sarah Rooker was to be believed, the charge in the indictment was made out. But it was exclusively for them to say whether she had told the truth. That if they were satisfied from all the facts and circumstances of the case that she had not sworn truly, or that she had assented to the act, it was their duty to acquit. That in coming to a conclusion they had the right to take into consideration the conduct of the witness, and all the circumstances surrounding the case."

We think the first and second grounds are without force, and that the charge of his Honor was correct, 4 Bl. Com., 213, Arch. Crim. Plead., 260.

The competency of the evidence objected to, in the prisoner's third ground, is settled in State v. George, 8 Ire., 324, and in subsequent decisions.

There was a motion in arrest of judgment, but no cause was assigned. After a careful examination of the record, we find no cause for arrest of judgment.

It must be certified to the Superior Court that there is no error in the judgment.

PER CURIAM.

Ordered to be certified accordingly.

The State v. Beatty.

THE STATE v. HENRY BEATTY.

An indictment for receiving stolen goods must contain an averment of the person from whom they were received.

If there be a general verdict of guilty upon an indictment having two counts, judgment cannot be arrested because one of those counts is bad.

If one of two repugnant counts is bad, a general verdict of guilty may well be supported by the other.

Where the joining of two counts is permitted by statute, they ought not, upon that account, to conclude against the statute.

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Where an indictment described the article stolen (here, corn.,) as being the "property" of the owner, instead of being of his "goods and chattels": Held, to be sufficient. (The cases S. v. Ives, 13 Ire., 338; S. v. Miller, 7 Ire., 275; S. v. McCauless, 9 Ire., 375, and S. v. Williams, 9 Ire., 140, cited and approved.)

INDICTMENT, charging, in one count, a larceny of "five bushels of corn, &c., the property of," &c.: in the other, that the defendant, "five bushels of corn, &c., the property of W. R., feloniously did receive, knowing the same to have been stolen." Upon the trial at Mecklenburg Superior Court, Spring Term, 1866, after a verdict of guilty, there were motions for a new trial, and in arrest of judgment, which having been overruled by Mitchell, J., the defendant appealed to this court.

Attorney General, for the State.

Boyden and Bailey, for the defendant.

BATTLE, J. The case of The State v. Ives, 13 Ire., 338, cited by the defendant's counsel to show that the second count of the indictment is bad, is in point for that purpose. In such a count there must be an averment of the person from whom the stolen goods were received.

But notwithstanding the validity of this objection, we are unable to see any error on the record which entitles the defendant to an arrest of the judgment. The first count of

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