This was an indictment for petit larceny in stealing a quantity of *Page 285 tobacco, the property of one John T. Chambers. The defendants' counsel moved the court for leave to plead severally "not guilty" for each of the defendants, but the court refused the motion and (403) required them to join in their plea. The State examined several witnesses, and proved a variety of circumstances tending to establish the charge against the defendants. Among other things, the State proved by the prosecutor that his tobacco was stolen on Friday night; that he followed the track of a cart from near his tobacco barn to a house of the defendant Scipio Smith on the next morning; that said house was on the land of the said Scipio Smith, about 80 or 100 yards from the dwelling-house of the said Scipio; that the witness then sued out a search warrant against the said Scipio on the same day, Saturday, placed it in the hands of an officer, who on the same day, opened the said house and there found his (Chambers') tobacco, which he immediately claimed to be his, in the presence of the said Scipio Smith; that the said Scipio replied that the tobacco was his (Scipio's) property, that it was grown on a certain field of his, and had been put in this house by his direction. It was also proved that there was a quantity of other tobacco in the said house, and that a negro man, the property of the said Smith, occupied the said house. It was also proved that the defendants Gordon and William Smith were the sons of Scipio Smith, and lived with him. On this part of the case the court charged that if they believed the tobacco found in the said house to be the property of Chambers, and that it had been stolen on the night before, the circumstance of the tobacco being found in the possession of the defendant Scipio Smith so recently after it had been stolen raised a strong presumption of guilt against the defendant Scipio, but raised no presumption of guilt against the other defendants. The jury found all the defendants guilty. The defendants' counsel moved for a new trial, first, because the defendants were not permitted to sever in their pleas; secondly, because the court charged the jury that the tobacco being found in the possession of the defendant Scipio Smith as above stated was a strong presumption of his guilt. The court overruled the motion for a new trial, and pronounced judgment against the defendants, from which judgment they appealed to the Supreme Court. It is assigned for error on the part of the prisoners that upon their arraignment it was prayed by their counsel that they should be permitted to plead not guilty severally, and that the court refused this permission. We admit, without hesitation, that they should have so pleaded, and that the refusal of his Honor was founded in a mistake of *Page 286 the law. But the record states generally that the defendants pleaded not guilty, and thereupon a jury was duly impaneled and charged to try whether they were guilty or not guilty of the offense charged in the indictment. Now, in contemplation of law, the plea was a several one, and the jury was impaneled to try the question of guilt as to each of the defendants. No idea was entertained, much less such an extravagant position taken, that if one were guilty all were guilty. It distinctly appears in the case that the jury was instructed, as to a part of the evidence, that, although it raised a strong presumption of guilt against one of the defendants, it raised no presumption against the others. As therefore, no error appears upon therecord, and the mistake set forth in the case was harmless and inoperative, we cannot reverse the judgment because of this exception.
It has been stated at the bar, and we have no doubt correctly, that the true question intended to have been submitted to and decided by the court was whether the prisoners were entitled to claim separate trials, and that question has accordingly been here argued. Although it is not properly presented to us, we will not decline to express our opinion upon it. This question was fully examined in U.S. v. Marchant, first in the Circuit Court for the District of Massachusetts and afterwards in the Supreme Court of the United States. The case is reported in 1 Mason, 158, and 12 Wheaton, 480, and all the learning applicable to the question will be found stated and ably illustrated in the opinion of Mr. JusticeStory. It was decided with entire unanimity that the court had a power, and would ordinarily exercise it, to direct separate trials, at the (405) request of the accused, when separate trials might be had without inconvenience, but that "this was a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence." It was in that case objected, as it has been argued here, that if a joint trial were had, and the prisoners did not agree in the challenges, one might desire to retain a juror who was challenged by another; that a juror challenged by any one must be withdrawn from the panel as to all the prisoners, and that thereby the right of each prisoner to select his jury would be impaired. But to this it was answered by the Court that the right of challenge was a right to reject (not a right to select) jurors; that neither of the prisoners had cause to complain that the others or any of them challenged a juror by whom he was willing to be tried, but by whom he had no right to be tried, and that all the law designed, by conferring on him the privilege of challenge, was to secure for the trial of his case unexceptionable jurors, and this it would secure to him, whether tried apart or together with the others jointly accused.
It has been insisted in argument that where a separate trial is had the *Page 287 prisoner may have witnesses who cannot be admitted if he be tried jointly: for example, his codefendant or their wives. But this is a mistake. Whether the trials be separate or not, one of several defendants, indicted together, cannot, until he is finally discharged, be a witness for the others; and wherever the wife of one is not permitted to testify for the others on a joint trial, she will not be received for them, although her husband be not then on trial. This Court fully acquiesces in the reasoning and in the judgment of the case referred to, and believes that judgment to be in conformity with the usage and law of this State.
Another exception has been taken on the part of the defendant Scipio Smith. It is to that part of his Honor's instruction to the jury which he has stated as follows: "On this part of the case the court charged the jury that if they believed the tobacco found in the said house to be the property of Chambers, and that it had been stolen on (406) the night before, the circumstance of the tobacco being found in the possession of the defendant Scipio Smith so recently after it had been stolen raised a strong presumption of guilt against the defendant Scipio Smith, but raised no presumption of guilt against the other defendants." The part of the case to which the instruction refers is as follows: That tobacco had been stolen from Chambers, the prosecutor, on Friday night; that on the next morning Chambers followed the track of a cart from the neighborhood of his tobacco barn to a house belonging to the defendant Scipio Smith, situate on his land about 80 or 100 yards from his dwelling, and on the same day sued out a search warrant, opened the house, and found there the stolen tobacco, which he claimed; that Scipio Smith at the same time claimed it as his tobacco which was grown on a certain field of his and had been there housed by his direction; that there was a quantity of other tobacco in the same house; that the house was occupied by a negro man belonging to Scipio Smith, and that the other defendants, Gordon and William Smith, were the sons of the said Scipio, and lived with him.
In the opinion of this Court the circumstance of the stolen tobacco being thus found in the possession of the defendant Scipio did not, in law, "raise a strong presumption of his guilt," and the instruction of the court below, on this part of the case, is erroneous.
From necessity, the law must admit, in criminal as well as civil cases, presumptive evidence; but in criminal cases it never allows to such evidence any technical or artificial operation beyond its natural tendency to produce belief under the circumstances of the case. Presumptions of this kind are derived altogether by means of experience from the course of nature and the habits of society, and when they are termed legal presumptions, it is because they have been so frequently drawn under the sanction of legal tribunals that they may be viewed as authorized *Page 288 presumptions. Among these is that which was in the mind of his Honor, the recent possession of stolen goods in the case of larceny, raising the presumption of an actual taking by the possessor. But when we (407) examine the cases in which such a presumption has been sanctioned, or consider the grounds of reason and experience on which the presumption is clearly warranted, we shall find that it applies only when this possession is of a kind which manifests that the stolen goods have come to the possessor by his own act, or, at all events, with hisundoubted concurrence. A leading case is that mentioned by Lord Hale, in illustrating the doctrine of presumptions in criminal cases. "In some cases (2 Hale P. C., 289) presumptive evidences go far to prove a person guilty, though there be no express proof of the act committed by him: but then it must be very warily pressed, for it is better that five guilty persons should escape unpunished than one innocent person should die. If a horse be stolen from A., and the same day B. be found upon him, it is a strong presumption that B. stole him; yet I do remember, before a very learned and wary judge, in such an instance B. was condemned and executed at Oxford assizes, and yet within two assizes after, C., being apprehended for another robbery and convicted, confessed upon his judgment and execution that he was the man that stole the horse, and being closely pursued, desired B., a stranger, to walk his horse for him, while he turned aside upon a necessary occasion and escaped; and B. was apprehended with the horse and died innocently." Here the horse had been stolen, and on the day of the theft B. was found upon him. B. had, unquestionably, therefore, taken the horse from some one, and on the very day of the theft; and because he could give no satisfactory explanation, that he got the horse from any other person, the presumption was allowed to be raised that he took the horse from the owner, and was, therefore, himself the thief. An agent in the change of the possession was found; there was guilt by some one in making the change; the circumstances all pointed to him as the person, and none raised a suspicion of any other; the agent found was, therefore, presumed the guilty agent. The rule is thus stated by Mr. East, 2 East P. C., 656: "Wherever the property of one man, which has been taken from him without his consent, is found (recently after the taking) upon another, it is incumbent on that other to prove how he came by it; otherwise, the (408) presumption is that he has taken it feloniously." The cases mentioned in illustration of this rule are such as the following: "Upon an indictment for stealing in a dwelling-house, the defendant is apprehended a few yards from the outer door with the stolen goods in his possession," Archbold's Crim. Pleader, 123. And the very common case where a gentleman has his watch stolen from his fob in a crowd, and shortly thereafter it is found concealed about the person of one who can *Page 289 give no rational account of how he obtained it. These raise the presumption of guilt against him thus found in possession. But it is obvious that presumptions of this kind, which even in the strongest cases are to be warily drawn, want one of the indispensable premises to warrant them, when the possession from which a guilty taking is inferred does not show ataking or privity in taking on the part of the possessor. If the tobacco stolen could not have been deposited in this house of the accused without his agency or privity, there would then have been a fact established, viz., that he had placed or caused it to be placed there since the theft, as a foundation for the inference of another fact, that he had participated in the theft itself. But clearly the court could not, upon the evidence stated as all the evidence on that part of the case, declare the fact, forming the foundation of the inference, to be established, and, therefore, could not rightfully instruct the jury that the inference might legally be drawn therefrom.
Nothing was said pointedly by his Honor regarding the claim set up by the accused to the property in the tobacco stolen, probably because he regarded such claim, taken in connection with the place where the tobacco was found, as evidencing no more than possession in the accused of the thing stolen, and, therefore, bringing the case within the operation of a precise rule of law. Nor can we draw any inference of guilt or innocence from it. If the tobacco of the prosecutor was so obviously different from the rest of the tobacco that the prisoner could not have mistaken it for part of the crop which he had made and housed the preceding year, this would certainly have been an unfavorable circumstance against him; but if it might honestly have been so mistaken by him, the claim (to say the least of it) was not inconsistent with (409) the hypothesis of his innocence. A case in this respect strikingly analogous is found in the books. If the sheep of A. stray from his flock to the flock of B., and B. drive them along with his own flock, and by mistake, without knowing or taking heed of the difference, shear them, it is no felony. But if B. knew them to be the sheep of another person, and tried to conceal that fact — if, for instance, finding another's mark upon them, he defaced it and put his own mark upon them — this would be evidence of felony. 1 Hale P. C., 506-7; 2 Russell on Crimes, 98. It appears that there was other testimony, independent of that, which was regarded as raising the presumption of guilt against this defendant, tending to establish the charge against all the accused. How much of it applied to them respectively does not appear. But as upon that other testimony, rejecting as to them the supposed presumption, the jury convicted the other two defendants, and as the court approved the verdict, and no exception is shown on their behalf to any instruction of the court or other proceeding bearing upon them, we are bound to hold that they *Page 290 were guilty of the crime charged. Not only, therefore, can we not interfere to relieve them from the merited penalty of the law, but this their established guilt renders more apparent the fallacy which misled his Honor in the instruction excepted to by this defendant. The tobacco was stolen by the two sons, who resided with their father. It was found in a house on the father's land, occupied by one of his negroes, together with other tobacco made and housed the former year. And these circumstances, of themselves, are supposed to raise, in law, a strong presumption of the father's guilt. We cannot so believe; because, unless there be other facts and circumstances to warrant the inference, such a presumption would be rash and irrational.
It may be that we have not clearly apprehended the sense and effect of the instruction excepted to, but we are constrained so to interpret it. And it may be that there was other evidence against the father, besides that upon which the erroneous instruction was given, to warrant the verdict against him. But this we do not know, and if we did, we (410) are bound to say that as his case has been submitted to the jury, with instructions which we believe unwarranted in law, and which may have had an improper influence on their minds, he has not been tried according to law, and is entitled to have another trial.
The Superior Court will set aside the verdict, as against the defendant Scipio Smith only, and award an alias venire to try him upon this indictment, and proceed to sentence upon the verdict against the defendants Gordon Smith and William Smith.
PER CURIAM. Ordered accordingly.
Cited: Harriss v. Lee, 46 N.C. 227; S. v. Williams, 47 N.C. 272; S.v. Harvell, 49 N.C. 56; S. v. Worthington, 64 N.C. 596; S. v. Bruner,65 N.C. 500; S. v. Collins, 70 N.C. 244; S. v. Brown, 76 N.C. 226;Capehart v. Stewart, 80 N.C. 102; S. v. Gooch, 94 N.C. 1006; S. v.Jacobs, 106 N.C. 697; S. v. Oxendine, 107 N.C. 784; S. v. McRae,120 N.C. 609; Dunn v. R. R., 131 N.C. 451; S. v. Barrett,142 N.C. 567; S. v. Anderson, 162 N.C. 575.
(411)