State v. Martin

• Decision Date: 24 April 1906
• Parties: STATE v. MARTIN.
• Court: North Carolina Supreme Court

53 S.E. 874

141 N.C. 832

STATE v. MARTIN.

Supreme Court of North Carolina

April 24, 1906

Appeal from Superior Court, Forsyth County; Peebles, Judge.

Reed Martin was convicted of a misdemeanor, and appeals. No error.

Criminal action tried before Peebles, judge, and a jury, at February term, 1906, of Forsyth superior court. The defendant Reed Martin was indicted with Henry Revels for willfully and wantonly injuring an electric street car by breaking its windows with a rock. The grand jury, as appears from the indorsements on the indictment, returned "not a true bill" as to Henry Revels and "a true bill" as to Reed Martin. Both were put on trial. J. M. Chitty, a witness for the state, testified: "I was motorman of the car the day the two defendants entered it at Fourth street. After going about a block or two, one of the defendants appeared to be intoxicated and was put off the car. One of the defendants, Reed Martin, picked up a rock and threw it. The rock missed the conductor, but broke a glass in the window of the car." There was other testimony on the part of the state which corroborated this witness. The defendants did not introduce any testimony, but requested the court to charge the jury that there was a variance between the allegation in the indictment and the evidence, and that the latter would not sustain a verdict of guilty. This prayer was refused, and the defendants excepted. The defendant Revels was acquitted. There was a verdict of guilty as to the defendant Reed Martin, who moved in arrest of judgment. The motion was overruled, and he excepted. Judgment was pronounced upon the verdict, and the defendant appealed. He assigned the following errors: (1) The refusal of the court to instruct the jury, as requested, that there was a variance; (2) there was a misjoinder of parties; (3) the offense could not be committed jointly; (4) that testimony competent only against the defendants jointly was admitted and used to convict the defendant Martin, when it appears that the indictment was returned "not a true bill" as to Revels, and he was actually acquitted on the trial.

J. S Grogan, for appellant.

The Attorney General, for the State.

WALKER J. (after stating the case).

The learned counsel for the defendant, in his argument before us relied chiefly upon the position that the street car was not personal property, and therefore that the alleged offense was not within the language or the meaning of section 3676 of the Revisal of 1905. He therefore contended that the judgment should be arrested. It does not appear from the indictment where the car was when it was injured by the defendant, but the evidence shows that it was then being operated on the track of the Fries Power Company in the city of Winston. The defendant's prayer for instructions is, perhaps sufficient to raise this question, apart from the motion in arrest of judgment, though it does not distinctly point out this as a defect in the evidence, and seems to have been intended to apply only to the question of variance. We will assume that the point is sufficiently presented, as it was clearly intended to be.

The method of changing property, personal in its nature, into realty, is well settled in the law. Such property does not become realty by mere use in connection with the land, for, if that were true, implements of husbandry, though used only for agricultural purposes, would thereby become a part of the land. Whether or not a chattel has become a part of the realty must to a great extent depend upon the facts of the particular case. The mere intention to make it a part of the freehold, though it may enter largely into the determination of the question of permanency (Foote v. Gooch, 96 N.C. 270, 1 S.E. 525, 60 Am. Rep. 411), is not, by itself sufficient for the purpose of making it so. There must be some kind of physical annexation of the thing to the land, though the nature and strength of the union is not material, if in fact it be annexed. The annexation is in some cases by gravitation alone, or, in other words, the thing is kept in position by its own weight, as in the case of the planks laid down as the upper floor of a gin house and used to spread cotton seed upon, though not nailed or otherwise fastened to the building. Bryan v. Lawrence, 50 N.C. 337; Latham v. Blakely, 70 N.C. 368. In such a case the planks are necessary for the completion of the structure and essential to its occupation, use, and enjoyment for the purposes of the trade or business to which it is adapted and has been appropriated. Latham v. Blakely, supra; Railroad v. Deal, 90 N.C. 110. They have, as it were, a permanent and fixed position, and are in a certain sense stationary--not movable, so as to be in one place to-day and in another to-morrow. "The very idea of a fixture," says the court, in Beardsley v. Ontario Bank, 31 Barb. (N. Y.) at page 630, "is of a thing fixed or attached to something as a permanent appendage, and implies firmness in position. But that which becomes by annexation a part of the soil is something more than a fixture, and requires at least as much permanence as to constitute a fixture. The maxim 'Quicquid plantatur solo, solo cedit,' which tersely expresses the principle, makes the affixing of the chattel to the soil the test by which it is declared to belong to the soil. Hence courts, in determining the questions that have arisen, have looked at the mode and intention of annexation, the object and customary use of the thing annexed, and, in determining the intention, the character of the claimant has had its weight." And again, at page 635 of 31 Barb. (N. Y.), the court, in discussing the difference between railroad cars and a loom in a factory, says that the latter are permanently placed, although not strongly affixed, while rolling stock is incapable of permanence or of being annexed in any one place, as it is intended for, and the whole use is in its locomotive facilities, and the court then proceeds: "The term by which it is ordinarily designated "rolling stock' implies the very reverse of annexation and a permanent fixture. It is essential to the successful operation of the railroad, but is not a part of the railroad itself. It is an accessory to the trade and business of the road, and not to the road itself. The road is completed when the bed is graded, the superstructure laid, the rails put down, and everything is ready for the reception of the locomotives and cars; it is equipped when the rolling stock and all other necessary appliances and facilities for business are finished and put upon it for use." That seems to be the leading case in the books. The opinion delivered by Judge Allen (afterwards a judge of the Court of Appeals) is devoted to a careful discussion of the subject and goes fully into the authorities. It is well considered and has been followed as a controlling precedent in several subsequent cases. A decision by the same court, in which the question is also learnedly and ably treated and the same conclusion reached, is Stevens v. Railroad, 31 Barb. (N. Y.) 590. The Court of Appeals of New York has expressly affirmed those cases and approved the principles upon which they were decided. Randall v. Elwell, 52 N.Y. 521, 11 Am. Rep. 747; Hoyle v. Railroad, 54 N.Y. 314, 13 Am. Rep. 595. To the same effect are State Treasurer v. Railroad, 28 N. J. Law, 21, and Williamson v. Railroad, 29 N. J. Eq. 311. In the last cited case it is said, at pages 329 and 331 of 29 N. J. Eq.: "The criterion for determining whether property, ordinarily regarded as personal, becomes annexed to and part of the realty, is the union of three requisites: First, actual annexation to the realty or something appurtenant thereto; second, application to the use or purpose to which that part of the realty with which it is connected is appropriated; third, the intention of the party making the annexation to make a permanent accession to the freehold. Tested by the foregoing criterion, it is manifest that the rolling stock of a railroad must be regarded as chattels which have not lost their distinctive character...