State v. Jackson
| Decision Date | 30 October 1940 |
| Docket Number | 364. |
| Citation | 11 S.E.2d 149,218 N.C. 373 |
| Parties | STATE v. JACKSON et al. |
| Court | North Carolina Supreme Court |
Criminal prosecution under indictment charging the crime of larceny.
The bill of indictment charged that the defendants, "with force and arms, at and in the county aforesaid, one tombstone at the head of the grave of A. J. Tuttle in the Clinton cemetery of the value of One Hundred and Fifty Dollars ($150.00), of the goods, chattels, and moneys of one Sarah E Tuttle, then and there being found, feloniously did steal take and carry away, contrary," etc. The bill also contains a second count for receiving.
There was evidence tending to show that the defendant Wooten through his agent and employee, the defendant Jackson without the knowledge and consent of the widow of A. J. Tuttle, went to the cemetery lot on which A. J. Tuttle was buried and removed therefrom a tombstone, erected at the grave of said Tuttle, of the value of $150 and carried the same away with intent to appropriate it to his own use.
In rebuttal the defendant Jackson offered evidence tending to show that he acted as an employee and under the direction of the defendant Wooten. The defendant Wooten offered evidence tending to show that he procured the removal of the stone under bona fide claim of right by virtue of a contract with Mrs. Tuttle.
The jury returned a verdict of not guilty as to the defendant Jackson and a verdict of guilty as to the defendant Wooten. From judgment pronounced on the verdict defendant Wooten appealed.
E. C. Robinson and J. D. Johnson, Jr., both of Clinton, for appellant Harvey Wooten.
Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Atty. Gen., for the State.
Larceny at common law was confined to "goods and chattels"; it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof. State v. Burrows, 33 N.C. 475; 36 C.J. 736, § 6. It, as a common law offense, is concerned with personal property only, and its nature has not been altered by the statutes making it larceny to steal things affixed to realty and severed therefrom by the thief. 36 C.J. 736, § 6. Therefore, it was not larceny, at common law, to steal anything adhering to the soil. State v. Burrows, supra; 17 R.C. L. 33.
The only purpose of statutes making chattels real the subject of larceny, and thus extending the common law crime, is to abrogate, so far as it affects the prosecution for larceny, the rule that things in their nature personal are or become realty while or when affixed to the soil and to abolish the subtle distinction between its severance and taking as a single and indivisible act and a severance and a taking as separate and distinct acts. 36 C.J. 736. Thus, C.S. § 4259 was enacted to eliminate a defect in the common law rule and to extend it so as to make chattels real, such as growing trees, plants, minerals, metals and fences, connected in someway with the land, the subject of larceny. The obvious intent of the act was to prevent the wilful and unlawful entry upon the land of another and the taking and carrying away of such articles as were not, at common law, or by previous statute, the subject of larceny. State v. Vosburg, 111 N.C. 718, 16 S.E. 392; State v. Beck, 141 N.C. 829, 53 S.E. 843.
The thought underlying the erection of a tombstone or marker at the grave of a deceased person is that of permanency. Its purpose is to designate the spot where the deceased was buried, to perpetuate his name and to record biographical data as to birth, death, etc. When so erected it becomes a chattel real and is not the subject of the common law crime of larceny.
An indictment for an offense created by statute must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself; and in order that it shall so appear, the bill must either charge the offense in the language of the act, or specifically set forth the facts constituting the same. 31 C.J. 703; State v. Merritt, 89 N.C. 506; State v. Rose, 90 N.C. 712; State v. Gibson, 169 N.C. 318, 85 S.E. 7; State v. Mooney, 173 N.C. 798, 92 S.E. 610; State v. Lockey, 214 N.C. 525, 199 S.E. 715. State v. Liles, 78 N.C. 496.
It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. The allegation and proof must correspond. State v. Wilkerson, 164 N.C. 431, 432, 79 S.E. 888; State v. Corpening, 191 N.C. 751, 133 S.E. 14; State v. Martin, 199 N.C. 636, 155 S.E. 447.
The bill of indictment charges the...
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