State v. Wolf

• Decision Date: 22 May 1907
• Citation: 66 A. 739,22 Del. 323
• Court: Court of General Sessions of Delaware
• Parties: STATE v. JOHN WOLF

66 A. 739

22 Del. 323

STATE v. JOHN WOLF

Court of General Sessions of Delaware, New Castle County

May 22, 1907

Court of General Sessions, New Castle County, May Term, 1907.

INDICTMENT FOR LARCENY.

At the trial the State proved that on the morning of the 30th day of April, 1907, when George F. Betts, trading as George F. Betts and Company and doing business as a leather manufacturer on the northwest corner of Conrad and Adams Streets in the City of Wilmington, went to his place of business, he missed certain brass parts from the machinery in his plant, among them being a pump dome, several valves and two lubricators all brass, and which when he last saw the same, on April the 27th, were attached to certain parts of the machinery; that said articles were owned by him as well as the factory in which the same were located. That the said pieces of brass were movable parts of the machinery and could be taken therefrom without injuring the factory or the other machinery. The State further proved that the value of the brass so taken from the said machinery was $ 200. There was further testimony that about four or five o'clock on the afternoon of April 29th, the defendant Wolf sold certain brass articles, including a pump dome to a junk dealer on West Street in said City which were subsequently taken from the latter by a police officer to the City Hall, where they were identified on May 1st by Mr. Betts as being the articles missed from his plant on the thirtieth day of April.

When the State rested, Jones for defendant moved that the Court instruct the jury to render a verdict of not guilty, on the ground that the evidence on the part of the State showed that the property alleged to have been stolen was real property and not personal property, and therefore could not be the subject of larceny.

The Court refused the motion for binding instructions and directed the defendants' counsel to proceed with the defense. It was later proved that all of the articles in question alleged to have been taken from the machinery were at the time covered by a chattel mortgage executed by George F. Betts, the prosecuting witness, to one Richard Young.

Verdict, guilty a recommendation to mercy of Court.

Daniel O. Hastings, Deputy Attorney-General, for the State.

William G. Jones for the defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

GRUBB, J., charging the jury,

Gentlemen of the jury:--John Wolf, the prisoner at the bar, stands charged in the indictment with the larceny of a certain piece of machinery commonly called a pump dome, of the value of twenty dollars lawful money of the United States of America and fifty pounds of brass, each pound thereof of the value of twelve cents like lawful money as aforesaid, of the goods and chattels of George F. Betts, trading as George F. Betts and Company.

As very nice technical questions have been raised by the counsel in this case, we will define to you what larceny is in law. Larceny is the wrongful or fraudulent taking and carrying away of the personal goods or property of another with the felonious intent to convert it to his own use and make it his own property without the consent of the owner.

The burden is upon the State--the prosecution--to prove to you by competent and satisfactory evidence every essential ingredient of the offense--the larceny--charged in the indictment. First, in this case--as the prominent point in the case--the State must prove that the property alleged to have been taken in this instance was personal property and not real property. If the State has established that, it must then show that such personal property was, first, taken by the accused, and second, that it was carried away by the accused, and third, that it was so taken and carried away with intent to steal it.

The main defense in this case, as the Court understands it, is that these articles alleged to have been taken--that is, this pump dome and the brass--were real property and not personal property.

We say to you if they were real property when taken and carried away with intent to steal them, then they would not be the subject of larceny, and the prisoner could not be convicted for taking them. If, however, within the meaning of the law they became personal property and were such at the time of the alleged taking and carrying of them away with the said felonous intent, then the prisoner may be found guilty under this indictment, if upon the facts in evidence in this case you are satisfied in so finding.

So that the question for you and the Court now to consider is, whether this property was real property or not. Real property is land and, generally, whatever is erected or growing upon or affixed to land. There are many articles known as fixtures which, though originally wholly moveable and personal in their nature, have acquired, by having been affixed to real estate or applied to use in connection with it, the character of realty.

With that general definition of what real property is, you will consider the facts in this case; of this being--if you find it to to be proven by the evidence--an establishment for the manufacture of leather and that it had within it the machinery for that purpose, including boiler, engine, pump, pipes and various other things essential for its operation as a factory for the manufacture of leather. Now, then, suppose you find from the evidence that these articles were so connected with the machinery and with that factory and the real estate or land upon which it was situated that it was real estate within the meaning of the law and that these articles were so affixed to the property as to be a part of the real estate, consisting of the factory, etc.: It is contended by the State that although you should find that it was real estate at the time of the commission of the alleged larceny, that still it was then so severed from the real estate as to have become personal property, and, being personal property, the subject of larceny.

Now if you should find, under the law and the facts in this case that it was severed from the...