State v. Davis

• Decision Date: 31 December 1841
• Citation: 2 Ired. 153,24 N.C. 153
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN DAVIS.

2 Ired. 153

24 N.C. 153

STATE

v.JOHN DAVIS.

Supreme Court of North Carolina.

December Term, 1841.

On an indictment under the act of Assembly, Rev. St. c. 34, s. 55, in relation to the altering or defacing the marks of cattle, &c. if the act of altering or defacing, &c. is proved to have been wilfully done, it nescessarily follows that the intent was to defraud or injure the owner, unless there be proof to the contrary.

It is no objection to a conviction on an indictment for this offence, that the cattle, beast, &c. had, at the time the act was done, strayed from its owner.

It is no ground for arresting judgment after conviction on an indictment, that it appears from the record that the Grand Jury, who found the bill, consisted of only fifteen persons.

By the common law a Grand Jury may consist of any number between twelve and twenty three. Our statute upon the subject of a Grand Jury is only directory to the Court, and does not declare void a bill or presentment found by a Grand Jury consisting of the common law number.

The cases of the State v McEntyre, 2 Law Rep. 287, and State v Seaborn, 4 Dev. 307, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Macon County, at Fall Term, 1841, before his Honor Judge MANLY. At this term, the defendant was tried upon the following indictment, to wit,

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                ¦“STATE OF N. CAROLINA, Macon County:¦)¦ss¦Sept. Court of Law, Fall Term, 1840.¦
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The Jurors for the State upon their oath present that John Davis, late of the County of Macon, on the 15th day of September, in the year 1840, with force and arms in the County aforesaid, feloniously and knowingly, did alter the make of one sheep, the property of William McConnell, knowingly with an intent to defraud the said William McConnell, contrary to the form of the statute in such case, made and provided and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that John Davis, late of the County aforesaid, on the day and year aforesaid, with force and arms in the County aforesaid, knowingly did deface the mark of a sheep the property one William McConnell, then and there with an intent to defraud the said William McConnell, contrary to the form of the statute in that case made and provided and against the peace and dignity of the State.

GUIN, Sol.”

The Grand Jury, who found this bill, “a true bill,” consisted, as appeared by the record, of only fifteen persons.

On the trial it was proved that the sheep in question was the property of the prosecutor as laid in the indictment--that it strayed away (being in his mark) and about two months afterwards was discovered in the inclosure of the defendant, with the mark altered to the defendant's mark. It was also proved that the alteration was made by the defendant.

It was argued there could not be a conviction in the case, because, 1st, There was no intention to defraud any person manifest; 2nd, There was no evidence that the defendant knew, at the time he altered the mark, that the sheep was the prosecutor's, or intended to defraud him; 3dly, The sheep was an estray and could not be the subject of this offence.

Upon these points the Court instructed the Jury, that if the defendant knew the sheep was not his, but the property of somebody else, and with this knowledge altered the mark and kept it in his enclosures, claiming it as his own, a fraud upon the owner followed as a necessary consequence, and one is always presumed to intend that which is the necessary consequence of his act. It was not necessary (the Court charged) that the defendant should know, at the time of the offence committed, to whom the sheep belonged; if he intended to defraud the owner, whoever he might be, it was sufficient. And although the sheep was a stray at the time, it nevertheless was the subject of this offence. A verdict was rendered against the defendant and judgment being given thereon, after an ineffectual motion for a new trial, on the ground of misdirection by the Court, the defendant appealed.

Francis for the defendant , in addition to the grounds taken below for a new trial, moved in arrest of judgment that the bill had been found by a Grand Jury consisting of only fifteen; and in support of this motion, cited State v Seaborn, 4 Dev. 312. Rev. St. c. 31, s. 34.

Bynum Solicitor for the State, contra 1 Chitt. Crim. L. 305; Cro. Eliz. 654; 2 Hale P. C. 151; to shew that a Grand Jury might consist of any number between 12 and 23, and State v Seabrook, 4 Dev. 312, to shew that, if the objection were valid, it should have been taken before pleaded.

GASTON, J.

We are of opinion that the appellant has not shewn any error in the instructions to the Jury, nor sufficient reasons to arrest the judgment.

The indictment is founded on the act of 1822, chap. 1155, re-enacted in the Revised Statutes, chap. 34, sect. 55, whereby it is declared, “that if any person shall knowingly alter or deface the mark or brand of any person's neat cattle, sheep or hog, or shall knowingly mismark or brand any unbranded or unmarked neat cattle, sheep or hog, not properly his own, with intent to defraud any other person, he shall, on conviction in a Court of Record, be liable to corporal punishment in the same manner as on a conviction of petit larceny.” The manifest purpose of the Legislature is to punish the act of changing or defacing these marks or brands, which are the ordinary indications of ownership in property of this description, and also the act of putting false marks or brands thereon, with intent to injure the owner by either depriving him of the property or rendering his title thereto more difficult of proof. Now, when the act of wilfully changing or defacing the mark is fixed upon the person accused, and no explanation is given of the act to render it consistent with an honest purpose, the conclusion follows irresistibly that it was done with intent to effect the injury which is the ordinary and necessary consequence of the act. Such intention is directed against the owner, whoever he may be, and the charge that the act was done with intent to injure any individual named is made out, when it is shewn that he was the owner at the time when the act was committed.

It has been contended by the counsel for the appellant that the offence created by the statute and charged in the indictment could not have been committed, because, at the time, when the act was done, the animal had strayed from the possession of the owner, and the statute, by declaring that the offender shall be liable to corporal punishment in the same manner as on a conviction of petit larceny, must be understood as applying to those cases only wherein the offender, by a felonious appropriation of the animal, would have committed the crime of petit larceny. He further urges that this construction of the statute is strengthened by the circumstance, that a special provision is made by the statute for improper interference with strays in c. 112, s. 8. We do not concur in this construction of the statute. In the description of the offence thereby created, no reference is made to the crime of larceny. The offence consists in knowingly altering or defacing the mark of, or in knowingly mismarking an animal, the property of another with intent to defraud. The mere straying of the animal from the owner's premises makes no change of property. The animal still remains his, and the wrongful act is not less calculated, but in fact more likely, to do him an injury, than it would be if done to an animal in his immediate possession. The reference in the statute to the punishment in cases of petit larceny does not affect the description of the offence, more than it would have affected that description, if the reference had been to the punishment in cases of perjury or forgery or of any other crime. It only denounces against the offence previously described, the same penalty by which, the existing law is inflicted upon a conviction of petit larceny. The construction contended for is not only unwarranted by the language of the statute, but would render the statute itself inoperative in the cases, which mainly rendered it necessary. Nor does the section referred to in c. 112 provide for an offence of this description in cases of strays. The...