
    
      The State v. John J. Williams.
    
    Necessaiy articles furnished by a parent to a minor child, for use, may well be described in an indictment, as belonging to either the parent or child.
    A saddle, furnished by a father to his infant son, is such an article as, in an indictment, may be laid in either the father or son.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    INDICTMENT FOR RECEIVING STOLEN GOODS.
    The proof was as follows:
    Samuel Dubose proved that he lost a saddle, the last of Oct¡ or 1st of Nov. ’45. He got a search warrant, went to Jack Williains, (the prisoner) charged him with having the saddle. He denied it; the prisoner went and brought ¿n old saddle. The witness then told him the saddle he was in search of* was hanging in his (the prisoner’s) bed-room: he (the prisoner) went back and brought out the saddle. This was, he said, in Charleston District, near Pinopolis. He said, on his cross-examination, that he had given the use of the saddle to his son Edwin, who was a minor living with him. After he recovered the saddle from the prisoner he considered it his own, having previously furnished his son with another. The witness said he had been told where the saddle was, and therefore he told the prisoner it was hanging up, in his bed-room, behind the door. The prisoner, in accounting to him how he came by the saddle, told him he got it from a negro slave, Daniel, and was to give $3 for it: but he had not paid for it. He said, in further answer to the cross-examination, that the prisoner’s character was not good, as he had heard; although gentlemen treated him with more favor than he deserved. He said he had heard he was not honest: he never believed him to be honest. The saddle, when lost, was in his son Edwin’s possession.
    Edwin Dubose proved that he considered the saddle his : he lost the saddle about Nov. 1845. It was taken out of the carriage-house of Mrs. Porcher, at Pinopolis, when the witness was on a visit.
    When a search was made for the saddle, the prisoner denied having it: brought out an old saddle. This witness’s father told him where it was: the prisoner then brought it, and said he got it of a wagoner. Witness’s father said “no!” The prisoner then said he got it from a slave named Daniel, the property of Mrs. S-; that he then suspected it was stolen; told the slave he would give him $3 for it, if it was not claimed. The witness said his father had made no formal gift of the saddle to him.
    The jury were instructed by the Presiding Judge to inquire— 1st, was the saddle stolen?
    2d. They were instructed to inquire — was the saddle the property of Samuel Dubose? It was so laid in the indictment, and hence the necessity of this inquiry. They were further instructed that even if Samuel Dubose had given the saddle to his son Edwin, yet insomuch as he lived with him and was a minor, it might be laid in the indictment to be his (Samuel Dubose’s) property, and that there was therefore no variance in the proof and allegation.
    3d. Did the prisoner obtain possession of the saddle, knowing it to be stolen? Upon this, the facts were carefully arranged and presented to the jury.
    They convicted the prisoner, and he appealed, on the annexed grounds:
    1st. Because the indictment charged the saddle (alleged to have been stolen) to have been the property of Samuel Du-bose, whereas the proof was, that it was the property of Edwin Dubose.
    
      2d. Because his Honor erred, it is respectfully submitted, in charging the jury that, assuming it to be proved that Samuel Dubose, the father, had actually given (or made an absolute gift) of the saddle in question to his son Edwin Dubose, a young man, near 20 years of age, and although it was abstracted not from the father’s possession, but from a neighbor’s carriage-house, some 8 or 9 miles distant, yet, the son being a minor, the property in the saddle was well laid in ■the father.
    Yeadon, for the motion,
    said if the property was exclusive in the son, it cannot be laid in the father. In this case, the son had a capacity to take, and the saddle was his; citing 2 Russell on Crimes, 1135; 1 Leach, 463 and 464, and 12 Reports, 113.
    Bailey, Attorney General, contra,
    said the property should be -laid in the father of a minor. The father only allows the use of such articles to his son. — 1 Blk. Com. 448 and 453. The goods may be laid in either father or son, except where ■the son is an apprentice to the father. — 1 Chit. Cr. L. 948.
   O’Neall, J.

delivered the opinion of the Court.

The only grounds of appeal argued are those which question the correctness of the instruction of the Judge below, “that even if Samuel Dubose had given the saddle to his son Edwin, yet, inasmuch as he lived with him, and was a minor, it might be laid, in the indictment, to be his (Samuel Dubose’s) property, and that there was therefore no variance in the proof and allegation.” This charge, when understood in reference to the case made, is undoubtedly in conformity to well settled law. The term “given,” used as it was on this occasion, as applying to necessary articles furnished by a parent to a minor child for use, does not necessarily carry, with it the idea of property beyond the parent's control: it means what is very well understood in every domestic circle, that the thing is delivered for use, and although bearing the name of the child using it, and therefore said to be given to him, and to be his, yet it is not so absolutely his property, but that the parent might himself use or sell it. Indeed the child’s possession and right are more that of a bailee, and the parent’s right that of a bailor, than any thing else. When so understood, the law, on general and familiar principles, would sustain the charge. It might be laid to be the property of either. This is exactly the law, as is well settled in many of the Old Bailey cases. Russell, in his second volume, 1134, states the rule to be that clothes and other necessaries provided for children by their parents are often laid to be'the property of the parents, especially while the children are of tender age: but it is holden good either way. This would seem to be the end of the matter, if a saddle be necessary for an infant son. That such is the case, has not been disputed, and indeed the habits of our country put it, as between parent and child, out of the question.

It is true, as has been urged in the argument, a child may have, and indeed very often has, a property in clothes and other necessaries, entirely independent of the father. Tods-gatés case is an illustration of this. There the son was bound to his father, and the clothes were furnished to him, under the stipulations of his indenture of apprenticeship. They were, therefore, as if bought by him. Hence they were his property, over which his father had no control.

The motion' is dismissed.

Richardson, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Withers, J. absent, from sickness.

Motion refused.  