Smith v. Commonwealth

• Decision Date: 22 May 1878
• Citation: 77 Ky. 31
• Parties: Smith v. Commonwealth.
• Court: Kentucky Court of Appeals

77 Ky. 31

Smith v. Commonwealth.

Court of Appeals of Kentucky.

May 22, 1878.

APPEAL FROM JEFFERSON CIRCUIT COURT.

CLAY & JACKSON FOR APPELLANT.

THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellant was indicted in the Jefferson Circuit Court and convicted of the crime of grand larceny, the allegation in the indictment being that he feloniously took and carried away four chandeliers of the value of $40, the property of one I. B. Webster. It appeared from the proof in behalf of the state that the chandeliers were attached to the house of Webster by being screwed into a gas-pipe that was fastened or attached to the ceiling. In this condition they were detached from the pipe and carried off by the accused, and it is now maintained by counsel that being annexed to the freehold they were not the subject of larceny, and his client was only a trespasser. If we adhere to the rule of the common law, it will be found that fixtures when they are attached to the freehold or savor of the realty, can not be made the subject of larceny when severed and carried away by one continuous act.

In determining whether the property taken was a part of the realty or a mere personal chattel, the test seems to have been, would the property alleged to have been stolen have passed by descent from the owner to the heir or to the vendee of the owner upon a conveyance of the freehold.

There can be no question but that in this case the chandeliers would have passed to the vendee of the land, or by descent to the heir on the death of the owner in fee, and if the severance by the accused does not convert them into personality in a case where the chattel is only constructively annexed, the appellant in this case was only guilty of a trespass. At the common law things real or things that savored of the realty could be converted by the thief into personalty, if after detaching them he left them on the soil of the owner, for a moment only, and returning carried them off; in other words, if left on the freehold of the owner for a moment after it is detached, it is personalty; but if kept in the hands of the thief until he leaves the premises, it is a part of the realty.

This technical distinction must have originated from the desire to punish the offender, as there seems to be but little reason for the rule, and the modern authorities, instead of following the common-law doctrine on the subject, apply it only to things issuing...