State v. Nipper

• Decision Date: 31 October 1886
• Citation: State v. Nipper, 95 N.C. 653 (N.C. 1886)
• Court: North Carolina Supreme Court
• Parties: STATE v. WILLIAM D. NIPPER.

95 N.C. 653

STATE

v.WILLIAM D. NIPPER.

Supreme Court of North Carolina.

October Term, 1886.

At July Criminal Term, 1886, of the Superior Court of WAKE, Philips, Judge, presiding, the defendant was tried upon an indictment for BURGLARY, containing two counts--the first charging him with feloniously breaking and entering the dwelling-house of one Jackson, with the intent the goods and chattels of the said Jackson feloniously and burglariously to steal, &c.; and the second, that he did break and enter into said house, with the intent the goods and chattels of said Jackson feloniously and burglariously to steal, &c., “and then and there in said dwelling-house, three bushels of corn, the property of said Jackson, feloniously and burglariously did steal,” & c.

Upon the first count there was a verdict of not guilty, but upon the second, the defendant was convicted of the larceny of the corn.

From the judgment thereupon he appealed.

Attorney-General, for the State .

Mr. J. H. Fleming, for the defendant .

MERRIMON, J.

The indictment charges the defendant with stealing three bushels of corn, the property of the prosecutor. The appellant contends that this implies shelled corn, and that as the evidence on the trial went to prove that the corn stolen was in the ear, there was a substantial variance between the charge in the indictment and the proof, and therefore he was improperly convicted.

The charge in an indictment in respect to the things stolen, must be made with such reasonable certainty as that the Court can see and understand what is its nature and its identity, and as will enable the accused to make his defence, and to show, in case of a subsequent prosecution for the same charge, that he had been convicted or acquitted thereof.

Applying this rule of law, we think the indictment is sufficiently certain. In this country, the term corn applies mainly to maize or Indian corn, and it does not necessarily imply shelled corn. In a general sense--one in common use--it implies corn either shelled or in the ear. Thus it is said of a farmer, that he produced on his farm a thousand bushels of corn, without reference to whether it is shelled or not. And so it is said, there is stored in a house a thousand bushels of corn--this implies that quantity shelled or unshelled. To say that a quantity of corn is shelled, or that it is unshelled, is to describe its condition in a certain respect; to say it is red, or white, or speckled, is to describe it...