
    
      The State v. James F. Teideman.
    
    Indictment for knowingly receiving stolen goods. The Court sustained the verdict against the defendant, it having been proved that he received the goods from the servant of a carrier, and concealed them; and circumstances existing amply sufficient to satisfy the jury that the possession of tire goods by the servant, had been furtively acquired.
    One count in the indictment charged the defendant with knowingly receiving stolen goods from a slave, which were the property of a person unknown. The jury found a verdict of guilty, and on appeal it was held that the count was sufficient to cover the goods, and that it was, therefore, immaterial whether • there was proof or not to sustain another count alleging in whom tire property was.
    
      Before Frost, X at Charleston, October, 1849.
    The indictment, in one count, charged the defendant with knowingly receiving stolen goods from Csesar, the slave of T. N. Gadsden, which were the property of C. 0. Henderson, otherwise called Charles C. Henderson. The other count charged the goods to be the property of a person unknown.
    Dr. Poppenheim and Col. Condy, Commissioners of the Cross-Roads of Charleston Neck, testified that from information received of a bargain, between Csesar and defendant, by which goods were to be delivered to defendant, they were induced to go and watch the shop of the defendant. They stationed themselves about seventy yards from the shop, and soon after saw Caesar, the slave of T. N. Gadsden, drive his dray to defendant’s door and stop. He got off his dray, took up a bag with something in it, and went into the shop. He quickly came out with the bag empty, which he folded and 1 put in the bed of his dray, and then returned into the shop. At this moment the witnesses came up. The negro and defendant were alone in the shop. There was nothing in the shop, except a ten gallon whiskey keg. There was a back room, with a bar fixture, and nothing else. The upper part of the house was hired to negroes. As soon as they entered, Poppenheim seized the negro. Condy asked the defendant what the negro had brought in, and he said “ nothing.”— Condy insisted the negro had brought in something, and defendant repeated he had not. Condy searched every place in the house, except under the counter, but found nothing. — . The defendant was leaning on the counter, with his person extended across the way, between the wall and the counter, so as to prevent access behind the counter. Condy pushed past him, and under the counter, near where defendant was stationed, he discovered nine hats covered under a piece of cloth. When they were taken out, defendant said he had bought them from one Oten. The witnesses took Caesar with them to the Rail Road depot, and selecting from a number of boxes, two, which had the appearance of having been opened, they found in one of the boxes, hats of the same description with those taken from defendant’s, and a vacant space in the box, corresponding with the number of hats which they had. The box was marked “ C. C. Henderson,” “ Lincoln County, N. C.” Mr. Hayne proved that he had known, for many years, one Charles Cotesworth Henderson, (who sometimes advertised by the name of Charles C. Henderson,) residing in Lincolnton, and keeping a store in which hats and the like articles were sold. Cassar was hired as a drayman by C. Elford, who was the agent of a line of vessels between New York and Charleston, to transport goods and merchandize from the vessels to the Rail Road depot. Oten testified that he had never sold any hats to the defendant. The box which the witnesses had opened was produced, in the same condition in which they had found it, when first opened by them.
    The jury were advised that there was no evidence that the box of hats was ever full, or that Caesar had opened the box; nor any proof to connect Ceesar with the box, except that he was a drayman, who was in the employment of a transportation agent. A short time before the charge to the jury, Nelme, a Rail Road officer, who had been several times called and failed to answer, /was observed to come into Court. In commenting on the defect of any evidence that Crnsar had any thing to do with the box, his Honor remarked that it might be explained by the late appearance of the witness, Nelme. But the jury were promptly and decisively told that this observation was not intended to supply evidence, but onjy t0 account for the omission by the Attorney General to produce evidence on that point.
    £rst ground of appeal is decided in the case of The State v. Koppenburg.
    
    The jury were advised that the evidence of ownership in C. C. Henderson, was hardly sufficient; but that, if the hats were not the property of Henderson, a verdict against the defendant might be sustained under the second count, charging the hats to be the property of a person unknown. They were also advised that if they were satisfied the goods were the property of C. G. Henderson, the evidence of Mr. Hayne might support the alias dictus. And lastly, they were instructed that goods to be the subject of larceny, must be in the possession, actual or constructive, of the person in whom the property was laid to be.
    The defendant was found guilty.
    The defendant appealed from the verdict, and moved in arrest of judgment, on the grounds following:
    1. That there was no proof of a larceny by the slave, alleged to have disposed of the goods to the defendant.
    2. That there was no proof that the chattels alleged to have been stolen, were the goods of “ G. C. Henderson,” as alleged in the indictment; or,- that there was any such person ; or, that “ G. G. Henderson” was, as alleged in the indictment, otherwise called “ Charles 0. Henderson.”
    3. That the proof being that the chattels were consigned to “ C. C. Henderson, North Carolina,” by a firm in New York, and that they were in transitu, and not delivered, he had no possession; and, therefore, no larceny could be committed by the servant, upon them, with regard to him.
    4. That there was an entire absence of any proof whatever, that the slave alleged to have stolen the chattels ever was in charge of the box from which they were stolen; or was in any way, or at any time, connected with it; and it was submitted that his Honor erred in undertaking to account to the jury for the defect in the evidence, by saying to them that “ he observed an agent of the Rail Road enter Gourt, after the evidence had closed, and too late to testify in the case; and that he could well account, therefore, for the want of proof, showing that the slave charged to have stolen the hats ‘ was the person who carried the box to the Rail Road;” and that the error was not remedied by the additional remark that “ the Court, however, did not intend to supply testimony.”
    
      F. D. Richardson, for the motion.
    
      Hayne, attorney general, contra.
   Curia, per O’Neall, J.

In this case we think the defendant was very properly convicted. That there had been a larceny committed, and by the slave too, as charged in the indictment, seems not to admit of doubt, when it is remembered how the goods went into the possession of the defendant, how they were found, and how manifestly they appeared to be part of the box opened and found at the Rail Road depot.

In running over these facts, it is perfectly clear that the slave had the hats in his possession, and delivered them to the defendant, by whom they were concealed, and who used every effort in his power to prevent a discovery. The slave’s possession of goods furtively acquired, raises in law the pre'sumption that he was the thief. It is, however, supposed, as a servant in possession, he could not commit a larceny. This supposes he had rightfully the possession, as the servant of the owner. But, in fact, he was the servant of the carrier, and had, therefore, no such possession as could in any way screen him from a conviction for larceny. If, however, the carrier had been, in his own person, in .possession, and had broken the bulk and secretly appropriated part of the goods to his own use, he would have been guilty of larceny. The case of The State v. Thurston is full to that point. The goods were directed to C. C. Henderson, Lincolnton, N. C. A merchant, Charles Cotesworth Henderson, who advertised as Charles C. Henderson, was shown to do business as a merchant at that place. This, it is true, was slight evidence, but yet it furnished a ground to believe that they were his: and this was enough for the jury. But it was perfectly immaterial whether the proof showed that fact or not. For if there was no proof of ownership in him, then they were the goods of a person unknown, and in that respect the indictment covered them.

The remark of the Judge about the presence of a witness who, if he had been sworn, might have removed some of the difficulties in the way of conviction, was so guarded and qualified that it could have had no effect whatever against the prisoner. Indeed the prisoner ought to have been the last to complain of the charge of the Judge below. He gave him the benefit of the most favorable construction which could be given to the testimony.

The motion is dismissed.

Evans, Wardlaw and Frost, JJ. concurred.

Motion refused.  