#### STATE v. E. Z. EUNICE.

(Filed 26 October, 1927.)

Criminal Law — Larceny—Instructions — Felonious Intent — Appeal and Error — New Trials.

Where the evidence is conflicting upon a trial for larceny, the burden of proof is on the State to show beyond a reasonable doubt the legal elements of tbe offense charged, and that it was done with a felonious intent, and an instruction which fails to so charge the law thereon is reversible error.

OeimiNal action, before *Sinclair, J.,*at March Term, 1927, of Onslow. .

*410Tbe defendant was indicted for tbe larceny of $31 in money from tbe prosecuting witness. Tbe evidence tended to show that tbe defendant went to tbe bouse of tbe prosecuting witness to sell ber a coat. Sbe testified: “He kept wanting me to try tbe coat on. He pulled money out of my pocket and left . . . grabbed money out of pocket and left.”

Tbe defendant was convicted and sentenced to work six months on tbe public roads, from wbicb judgment be appealed.

*Attorney-Qenerasl Brummitt and Assistant Attorney-General Nash for the State.*

*Summersill & Summersill, Ward & Ward and Q. V. Oowper for defendant.*

BeogdeN, J.

Tbe chief exception is to tbe failure of bis Honor to properly charge tbe jury. In tbe beginning of bis charge tbe trial judge instructed tbe jury that: “In order to convict him tbe law places tbe burden on tbe State to satisfy you beyond a reasonable doubt that be is guilty as charged in tbe bill of indictment.” Tbe judge then proceeds to array fully tbe contentions of tbe State and tbe defendant, and concludes as follows: “You will take tbe ease and consider it, consider all tbe evidence in tbe case, whether I have called it to your attention or not. You are sensible men. Take this evidence and weigh it, and say what weight you will give to each and every part of it, accepting that wbicb you find entitled to be accepted and rejecting that which is not. If tbe State has carried tbe burden, wbicb tbe law places upon it, and has satisfied you beyond a reasonable doubt that tbe defendant is guilty, as charged in tbe bill of indictment, your verdict would be guilty. If tbe State has not so satisfied you your verdict would be not guilty.”

Tbe specific exception addressed to tbe charge of tbe court is that tbe defendant was being tried upon an indictment for larceny and that tbe charge as given contained no definition of larceny or tbe legal elements wbicb constitute tbe offense, and for tbe further reason that tbe question of felonious intent was not submitted to tbe jury.

In *S. v. Barrett,*123 N. C., 753, tbe defendant was indicted for larceny. Tbe court charged tbe jury as follows: “If you believe from tbe evidence that tbe prosecutor missed an axe, and if you should believe that tbe axe described by tbe witness, Shannon, as in tbe possession of tbe defendant, was that axe of prosecutor, and believe all this beyond a reasonable doubt, you will bring in a verdict of guilty, otherwise you will acquit tbe defendant.” This Court awarded a new trial, declaring in tbe opinion: “Tbe charge is fatally defective for tbe reason that it does not submit tbe question of felonious intent to tbe jury, wbicb is *411one of tbe necessary ingredients of larceny.” Again, in *S. v. Coy,*119 N. C., 903, tbe Court said: “What is meant by felonious intent is a question for tbe court to explain to tbe jury, and whether it is present at any particular time is for tbe jury to say.” *S. v. Kirkland,*178 N. C., 810; *Blake v. Smith,*163 N. C., 274.

Under tbe rules of law applicable tbe defendant is entitled to have bis exception sustained.

New trial.