None of the objections raised by the counsel of the prisoner are available to him.
1. The confessions of the prisoner were voluntary and admissible, even without the consent of the counsel; but when the counsel withdrew his objections and allowed the greater part of the conversation between the witness and the prisoner to be given in evidence, he had no right, by removing the objection, to exclude a part or the whole. State v. Davis, 63 N. C. Rep., 578.
2. We know of no rule of evidence which excluded the testimony of Worth because he was a grand juror, even if he had acted as such in finding the bill. But when it appears that he declined to act or vote on the bill, because he was a witness, there is no ground of objection to his competency.
3. The counsel for the prisoner asked the Court to instruct the jury that there was no evidence that the breaking was in the night time. This was properly refused, because there was much evidence given, going to show that the breaking and entry were in the night time. The evidence is set forth in the case, and we think it fully sustains the ruling of the Court;
4. The Court was asked to instruct the jury tnat the possession of the watch proved, was not such a recent possession as raised the presumption of law, that the prisoner was the thief. This instruction was given, but the jury were told that this possession of the stolen article, was a fact which they might consider with the other facts, upon the question of his guilt. In this there was no error.
5. The counsel moved in arrest of judgment, because the indictment concluded at common law, when it should have concluded against the statute.
This objection is disposed of by this Court in the case of the State v. Ratts, 63 N. C. Rep., 503. When the offence is made of a higher nature by statute than it was at common law, the indictment must conclude against the statute; but if the punishment is lessened, it need not so conclude. In our case the offence of burglary is the same that it was at common law, and the punishment is neither greater or less than it was at common law, but the same. The conclusion of the indictment was therefore proper. The other objections made in the record have no force in them, and were not insisted upon in this Court.
There is no error.
Judgment affirmed.