State v. . Helmes, 27 N.C. 364

State v. . Helmes

27 N.C. 364 | N.C. | 1845

The defendant was convicted on an indictment for "unlawfully, wickedly, and maliciously" cutting and destroying a quantity of standing Indian corn, the property of, etc. His counsel moved in arrest (365) of judgment on the ground that standing Indian corn was not such personal property as could be made the subject of malicious mischief. The motion was disallowed by the court, and judgment being pronounced for the State, the defendant appealed. The indictment charges "that the defendant unlawfully, wickedly, and maliciously did cut and destroy a quantity of Indian corn," and concludes at common law. The defendant was convicted by the jury and, upon a motion to arrest the judgment, the motion was overruled and judgment given in favor of the State. We are of opinion there was error in the judgment pronounced. It is too late, in this State, to question whether an indictment lay at common law for malicious mischief. The point has been several times before the Supreme Court, and it has uniformly been decided that it would. S. v. Landreth, 4 N.C. 331; S. v.Simpson, 9 N.C. 460; S. v. Scott, 19 N.C. 35; S. v. Robinson,20 N.C. 129. In each of these cases those preceding it have been referred to and approved. It may then be considered the settled law of this State. In the case last cited the court gave a definition of malicious mischief which is decisive of this case; it is said "to consist in the willful destruction of some articles of personal property from actual ill-will or resentment towards its owner or possessor." The property destroyed must be personal property. The charge against the defendant is that he cut and destroyed a quantity of standing corn. Standing corn, that is, corn attached to the land and not cut, is not personal property, but savors of or rather is a part of the realty. It is true that to certain purposes and to a certain extent growing or standing corn is considered by the common law as personalty. It is liable to be taken and sold under execution, and, as between the executor and the heir, it belongs to the executor; and in each of these cases it is considered as personalty for the (366) same purpose, that is, of subjecting it by fi. fa. to the debts of the owner. In no other case does the common law view it as personalty. Our Legislature have, for another object, given it the same character. It is made the subject of larceny. Rev. Stat., ch. 34, sec. 24. For no other purpose, either civil or criminal, is that character impressed upon it by the act referred to. And, assuredly, it is not in the power of this Court to make the act criminal to any other or different purpose. It was objected *262 by the defendant that the indictment charges the cutting and destroying ofstanding corn. Were this an indictment under the statute for stealing, the distinction between growing corn and corn standing and unsevered from the earth might be a very important one. In this case, for the reasons above given, it is not.

PER CURIAM. Judgment arrested.

Cited: S. v. Hill, 79 N.C. 658; S. v. Martin, 141 N.C. 838; S. v.Frisbee, 142 N.C. 675.