
    The State v. Resolved Slack.
    Columbia,
    Dec. 1829.
    An objection to the order, in which the jurors were called up by the clerk to be challenged by the prisoner, comes too late after verdict, vide State v. Sims, 2 Bailey, 29.
    Where stolen goods were traced into the possession of the defendant, his shewing where they were deposited, will not render his declarations, made at , the time, as to the manner in which they came into his possession, admissible in evidence, in his favor, on the trial of an indictment against him for; the larceny.
    Where an article stolen is of intrinsic worth, evidence of the exact value is not necessary to sustain a conviction for petit larceny.
    Error in law in the charge of the presiding Judge is no ground for a new trial, in favor of a party, who might have been benefited, but could not have been injured by it.
    Where the possession of stolen property has been very recent, strict proof of its identity is not necessary : thus, where a bale of cotton has been stolen, and traced immediately into the possession of the defendant, if the cotton found in his possession, although then in bulk, yet appeared to have been formerly packed, and resembled that which was stolen, the evidence of identity is sufficient to be submitted to the jury.
    It is no ground for a new trial, that the presiding Judge refused to charge the jury upon a mere possibility, unsupported by evidence, by which a defendant, indicted for larceny may have been innocent.
    Objections to the views expressed by the presiding Judge, in his charge to the juryi in relation to the facts, furnish no ground for a new trial, if the verdict in itself is unobjectionable.
    Tried before Mr. Justice O’Neall, at Newberry, Fall Term, 1829.
    This was an indictment for stealing a bale of cotton. It was proved, that a bale of cotton, the property of Edmund Kelly, the prosecutor, had been taken, privately, and without his knov/ledge, or consent, from a gin house in Newberry District, on. Wednesday, the 31st December, 1828. It was not missed, however, until the Friday following, when search was imtnedi-tely made, and on Sunday morning, at a short distance from the public road, a wagon track was discovered, which being followed up, led to a place in the woods, where a bale of cotton appeared to have been unpacked, and loaded again into the wagon. On Monday the pursuit was commenced, and the wagon, which was distinguishable by the shape of the tire, was traced to the residence of the-defendant, in Spartanburgh District. On approaching his residence, the party in pursuit, observed him in his field,- and went up to him, and stated their business. He immediately led them to a warehouse near the road, and exhibited a parcel of cotton in bulk, which had evidently been packed, and which Kelly, the prosecutor, believed to be his own. There was some evidence of the defendant’s having been seen on the road, on the 31st December, 1828, going in the direction of the place from which the cotton was stolen ; and again, on the next day, returning from the same quarter. The jury found him guilty of petit larceny; and he now moved for a new trial, on various grounds, which, with such facts, in addition to the foregoing, as are necessary to a full understanding of the case, will sufficiently appear in the opinion delivered by the Court of Appeals.
    Thomson, for motion.
    Earle', Solicitor, contra.
    
   Colcock, J.

delivered the opinion of the Court,

There are four of the many grounds, taken in this case, which may be considered as properly legal grounds. The first is, “that the clerk in calling over the jury, pursued the order in which they were impanelled, instead of that in which their names appeared in the venire,

This ground was not very seriously urged by the prisoner’s counsel; and for that reason, as well as because it was not made on the trial, little need be said of it. If there were any thing in the ground, the very circumstance of its not having been relied on below, would be sufficient, in such a matter, to induce the Court to reject it. But there can be no well founded objection to calling over the jury in the manner in which the clerk proceeded in this case; and if there were, no injury could result to the prisoner, for he is not thereby precluded from his right of challenge, nor even restrained in its exercise. If he proceeds in his challenges in the manner, in which the law di~ recjg ]-,jm t0 proceed, it is wholly immaterial how the panel is called. On his arraignment, if he thinks it necessary to his defence, he may demand a copy of the indictment, a list of the panel, and three days to prepare ; so that he has a full opportunity of selecting his jury.

The second ground is, “that the presiding Judge erred, in rejecting evidence of the declarations of the defendant, made at the time he shewed the cotton, which was alleged to have been • stolen, explaining the time and manner by which it came into his possession, which it is submitted ought to have been admitted as a part of the res gestee.'’'’

There can be no doubt that the evidence was properly rejected. The rule relied on has no application ; the case did not depend on the confession of the accused, or any state of facts connected with any declarations of his. The cotton was traced into his possession, and the presiding Judge reports, that after the witness had sworn to all the facts, by which they bad been directed to the defendant’s house, and stated that he, the defendant, had shewed them the cotton, his counsel asked, that the witness should be required to state, what he had said in relation to the “time and manner in which he had acquired it;” which in fact would have been to permit the defendant to make evidence for himself. When expressions are necessary to give character to acts, they become a part of the res gestee ; or where a confession is relied on, the whole must be given in evidence. The authority referred to by the defendant’s counsel, most clearly explains the rule on which he relies, and shews that it is wholly inapplicable to the state of things in this case. Mr. Starkie say¡-, “it is to be observed, that in these cases when declarations or entries are admitted in evidence as a part of the res gestee, or transaction, they are admitted on the presumption that they elucidate the facts with which they are connected, having been made without piemeditation or artifice, and without a view to the consequences.” Stark. Ev. part 1. 49. Now need it be asked, if such was the character of the declarations rejected by the Court? Did they tend to elucidate the subject? Were they made without a view to the consequences ? It was the case of one found iu possession of goods recently lost. He was bound, says the law, to account for the possession, but not by his own declarations; for if that was all that was required, the role would be of little value.

The ns'xt «round which I shall notice is, “that there was no proof of the value of the cotton alleged to have been stolen.” Where the article is of intrinsic worth, proof of the value is not absolutely necessary, for the jury cannot go wrong on the subject, where they find the defendant guilty of petit larceny : if the article be of any value, it is the subject of petit larceny. If the thing stolen be proved to be worth twenty dollars, the jury may estimate it at less than a shilling, for the purnose of finding the defendant guilty of the lesser offence, as has been often ruled.

The last of the grounds which may be considered a legal ground, is, “that the Court erred in’ stating to the jury, that about five dollars of our present, coin is the sum, at which the line is now drawn hy our Courts, between grand and petit larceny.” This, at least, could do the prisoner no injury. If the cotton stolen was worth one cent, the crime of petit larceny was complete ; and if it was worth the larger sum, it was certainly worth the smaller.- To have rated the sum necessary to complete the greater offence too high, was, therefore, a benefit, rather than an injury to the defendant; and is no ground for a new trial.

The other grounds relate to the facts, and it is not necessary to notice them all. I shall remark on one of them for its importance, and on another for its novelty. The first is the objection to the sufficiency of the evidence adduced as to the identity of the cotton. This, of course, is always a question of fact for the jury, and the degree of proof depends on the time which has' elapsed, between the commission of the theft, and the discovery. If the possession be not recent, it is necessary to give strict proof of the identity, “ which is not so necessary, where the possession is very recent ; as where a man comes out of a barn with corn concealed on his person, or where he is in possession of sugar which he cannot account for, just after he has left the dock where a quantity of similar sugar is deposited.” Stark. Ev. part 4. 840. ' Wow here the defendant had not long been at home before the pursuers came up, and the eotton had been followed from the spot where it-had been taken up into the wagon ; and it was cotton which had been packed, and of the same sort with that which had been lost. So that there was enough to satisfy the jury as to the identity.

The other ground, and the last upon which I shall remark, is, “ that the presiding Judge refused to state to the jury that there were many persons in this, country, from whom the defendant may have bought the cotton, who co.uld not be heard in Court, as that was insisted on as a ground of defence.” I am at a loss to conceive how a mere possibility, unsupported by a shadow of evidence, could be a legitimate ground of defence. He may, it is true, have bought the cotton of a negro ; but why not as well suppose that he found it ? There is as much grou nd for the one supposition as for the other. A jury may be influenced by probabilities arising from a well connected chain of facts. But if they were bound to follow the accused or his counsel through the regions of fancy, it would be no difficult task for them to conjure up agents of any colour to screen the accused from punishment.

It is not necessary to notice the other grounds taken, as they only contain objections to the views presented by the Judge on different points of the evidence. On the whole, we can see no ground for granting the motion ; and it is, therefore, dismissed.

Motion refused.  