State v. Mason
| Decision Date | 30 June 1852 |
| Citation | 35 N.C. 341,13 Ired. 341 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JOHN MASON. |
In an indictment, under the Stat. 1846-7, ch. 7, for injury to a dwelling house, of which a lessee, his term yet unexpired, has the actual possession, the indictment, if it can lie at all, must state the property to be in the lessee.
But the act does not embrace the case of destruction or damage to buildings &c., by the owner himself, and in law the lessee is the owner, during the continuance of his term.
Appeal from the Superior Court of Law of Stanly County, at the Spring Term, 1852, his Honor Judge ELLIS presididing.
indictment is for defacing and injuring a dwelling house of Joshua Hearnes, contrary to the statute. The evidence was, that one Bowers leased the house from Hearnes for a time, and entered into possession; and when the term was about to expire and Bowers to leave the premises, he took up the flooring plank to carry it away; and at his request the defendant assisted him, knowing that Bowers was the tenant of Hearne. The counsel for the defendant moved the Court to instruct the jury, that he was not guilty, because Bowers occupied the premises as tenant. But the presiding Judge was of opinion, that the act of 1846, ch. 70, was intended to prevent injuries to the freehold, and directed the jury upon the evidence to find the defendant guilty; and after conviction and sentence the defendant appealed.
Attorney General for the State .
Mendenhall and J. H. Bryan for the defendant .
In indictments for injuries to property, it is necessary to lay the property truly, and a variance in that respect is fatal. And where the injury is alleged to be to a dwelling house, as in burglary or arson at common law, it is always laid as the dwelling house of a lessee, who is actually in possession, and not of the reversioner. For that reason this indictment could not be sustained, if any could; for, there is no ground, on which, under this statute, there could be a departure from the usual mode of laying the property in the lessee and occupier. But, in truth, the facts would not support an indictment in any form; because, in the opinion of the Court, the case is not within the act. For, although it protects houses and enclosures from destruction or injury, yet necessarily an exception is to be implied, when the destruction or damage is by the owner. The act has in view the preservation of his estate and interest, and,...
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State v. Campbell
...indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal." State v. Mason , 35 N.C. 341, 342 (1852).However, if it can be shown that the person named in the indictment, though not the actual owner of the stolen item, had a "spec......
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State v. Cooke
...after being forbidden, State v. Baker, supra; in malicious injury to property, State v. Hicks, 233 N.C. 31, 62 S.E.2d 497; State v. Mason, 35 N.C. 341; in larceny, State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Harris, 195 N.C. 306, 141 S.E. 883; >tate v. Harbert, 185 N.C. 760, 118 S.E......
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State v. Gayton-Barbosa
...indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal." State v. Mason, 35 N.C. 341, 342 (1852). However, if it can be shown that the person named in the indictment, though not the actual owner of the stolen item, had a "spec......
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State v. Campbell
...indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal." State v. Mason, 35 N.C. 341, 342 (1852).However, if it can be shown that the person named in the indictment, though not the actual owner of the stolen item, had a "speci......