State v. Vosburg

• Decision Date: 13 December 1892
• Parties: STATE v. VOSBURG.
• Court: North Carolina Supreme Court

16 S.E. 392

111 N.C. 718

STATE v. VOSBURG.

Supreme Court of North Carolina

December 13, 1892

Appeal from superior court, Gaston county; J. F. GRAVES, Judge.

Ann Vosburg was convicted of a misdemeanor. From a judgment denying a motion in arrest of judgment, defendant appeals. Arrested.

The first count of the bill of indictment is as follows:

"The jurors," etc., "present that Ann Vosburg," etc., "with force and arms, at and in said county unlawfully and willfully did enter upon the lands of one R V. Cannon, she, the said Ann Vosburg, not being then and there the owner or bona fide claimant of said lands, and then and there, feloniously, unlawfully, and willfully with a felonious intent, did carry off one hundred dollars of money, of the value of one hundred dollars, of the goods and chattels of the said R. V. Cannon, said money being then and there on said lands, contrary to the form of the statute," etc. The second count was for larceny at common law. There was a verdict of not guilty of larceny, and not guilty of the felony charged in the first count, but guilty of a misdemeanor under the first count. The defendant moved in arrest of judgment for that (1) the bill of indictment was drawn under section 1070 of the Code, for the taking of money, whereas the taking of money was not contemplated by this section; (2) sections 1070 and 1120 of the Code are, taken together, the old act of 1866, c. 60, and the state must charge in the bill of indictment, and prove, that the defendant had been, before the taking, forbidden to enter the lands.

G. F. Bason, for appellant.

The Attorney General, for the State.

MACRAE J.

Section 1070 of the Code, under which the bill of indictment is framed, is in these words:

"If any person, not being the present owner or bona fide claimant thereof, shall willfully and unlawfully enter upon the lands of another, and carry off, or be engaged in carrying off, any wood or other kind of property whatsoever, growing or being thereon, the same being the property of the owner of the premises, or under his control, keeping, or care, such person shall, if the act be done with felonious intent, be guilty of larceny, and punished as for that offense, and, if not done with such intent, shall be guilty of a misdemeanor." There was a verdict of not guilty of larceny, and this disposes of the second count of the bill. The motion in arrest of judgment is directed to the first count, upon which the defendant was found guilty of a misdemeanor, and not guilty of the felony charged therein.

The first ground upon which the motion in arrest is based is "The bill of indictment was drawn under section 1070 of the Code, for the taking of money, whereas the taking of money was not contemplated by this section." This statute is part of the act of 1866, c. 60, entitled "An act to prevent...