
    The State vs. Adam Hardy and Reuben Brunson.
    The defendants were indicted for stealing the corn of the prosecutor, and were convicted. The evidence was, that they came in the night to one of his negroes, and inquired of him if he could let them have some bacon; they then separated, and after some hours the negro returned and spoke to them. He then went to the prosecutor’s corn house, unlocked the door, and brought out a basket of corn to the defendants ; the witness, who had been watching them, then advanced and spoke— upon which the defendants ran off, leaving the negro still holding the corn, The Court granted a new trial, as there was not sufficient evidence of asportation, or that the taking- by the negro was by their counsel, command, or procurement.
    BEFORE RICHARDSON, J„ AT BARNWELL, OCTOBER, 1835.
    The defendants were indicted for stealing the corn of John Brunson. John A. Brunson, the son of the prosecutor, testified, that being suspicious of bis father’s corn having been stolen, be watched 'on the night of the 15th of May, 1834. That be saw the defendants speaking to Paris, one of bis father’s negroes, and beard them inquire if be could get them some bacon. They then separated' — and after some hours had elapsed, Paris returned, and held some conversation with the defendants. He then went off to the corn house of the prosecutor, unlocked the door and brought to them a basket of corn. The witness waited a little, and then advanced and spoke to them — upon which the defendants ran off, leaving the negro still bolding the corn.
    The counsel for the defendants contended that there bad been no asportation by the defendants, and, in fact, no proof of a felonious taking by the negro, as it was not shown to have been done against the consent of the prosecutor, who owned both the corn and the negro ; nor was there any proof .that the taking was by the procurement or co-operation of the defendants.
    His Honor submitted it to the jury to determine whether the felonious taking by the negro was sufficiently proved, and. whether the defendants were bis associates in the transaction. He also explained to them fully the principles of law involved in the case; and on retiring, they found a verdict of “ guilty,” against both defendants.
    
      A motion was made in the Court of Appeals, for a new trial, on the following grounds:
    1st. Because there was no evidence of a larceny in taking the corn; both the negro Paris, 'and the corn, belonging to John Brunson, and the corn not having been out of the possession of the negro.
    2d. There was no evidence connecting the defendants with the taking of the corn by the negro, from bis master’s crib, even supposing that taking to have been felonious.
    3d. The evidence was clear that the defendants never had the possession of the' corn, and there was no proof that the corn bad been taken at their instance, or that they were otherwise connected with it.'
    4th. Because there was no proof that the corn was taken out of the crib by the negro, against the consent of John Brunson, the owner of the negro and the corn, or that the taking was otherwise felonious. _ From any thing that appeared, the taking may have been by the order of the master.
    5th. The finding of the jury was otherwise contrary to law and evidence.
    
      Trotti and Bauskett, for the motion.
    
      Elmore, Sol., contra.
   Earle, J.,

delivered the opinion of the Court.

It does not appear from the report of bis Honor, the presiding Judge, and we are not otherwise informed, whether the defendants were indicted for grand or petit larceny. The proof is that the corn was actually taken from the crib by the negro, and the defendants were not actually present, so as to be aiding and abetting: nor does the evidence make out such a case of concert and co-operation in a common design, as to make them constructively present, and therefore principals in the second degree. According to the rules applicable to cases of felony, if they only counselled, commanded, or procured the corn to be stolen, even for their benefit, they would only be accessories before the fact, and could not have been convicted of grand larceny, unless so charged in the indictment. The same proof, however, would have made them principals in petit larceny, which does not admit of accessories, and I suppose for this latter offence they were indicted.

On a careful examination of the evidence, I think the case has not been sufficiently proved against the defendants. In order to constitute larceny, an entire possession of the goods, if for an instant only, is indispensable. The defendants never had the possession of the goods, and the presumption which would arise against them from such possession unexplained on their part, does not arise. They could only be convicted of petit larceny on such proof as would make them accessories before the fact in grand larceny, as that the corn was stolen by their counsel, command or procurement; or such as would make them principals in the second degree; as that it was stolen not only with their knowledge, but with their consent and co-operation, they being actually or constructively present, aiding and abetting. I think that the evidence will be found very clearly deficient on both points.

The defendant Hardy, inquired if the negro had any bacon that he could let him have- — and being answered in the negative, inquired if another negro had any. He made no application for corn, and if the negro had been able to furnish the bacon, it would be more reasonable, as well as more charitable, to conclude that the defendant, Hardy, expected and intended to pa}'- for it; nor is there any good ground for assuming that he was negotiating for a stolen article rather than such as belonged to the negro. That the taking by the negro was such as to constitute a theft on his part, is clear enough; and that something improper and unlawful was intended on the part, at least, of the defendant, Hardy, may fairly be inferred. Although the corn was stolen by the negro, with the view to dispose of it to the defendants, or one of them, even under an agreement with the latter that they would receive it, or purchase it, yet there is surely no sufficient proof that they knew that he was stealing it at the time he was engaged in the act, or that they advised or procured him to steal it in order that they might obtain it. It is more reasonable to conclude that they intended no higher offence than to trade with the negro for whatever he had to sell.

Where the circumstances are equivocal and will bear several interpretations, it is our duty to give them that construction which, is most favorable to the accused, and which involves the smallest degree of guilt.

The motion for a new trial is granted.  