Lаrceny at common law was confined to “goods and chattels”; it did not extend to land, becausе land could not be feloniously taken and carried away, except insignificant parcels thеreof.
S. v. Burrows,
The only purpose of statutes making chattels real the subject of larceny, and thus extending the common law crime, is to abrogate, so far as it affects the prosecution for larceny, the rule that things in their nature personal are or become realty while or when affixed to the soil . . . and to abolish the subtle distinction between its severance and taking as a single and indivisiblе act and a severance and a taking as separate and distinct acts. 36 C. J., 736. Thus, C. S., 4259, was enactеd to eliminate a defect in the common law rule and to extend it so as to make chattels rеal, such as growing trees, plants, minerals, metals and fences, connected in some way with the land, the subject of larceny. The obvious intent of the act was to prevent the willful and unlawful entry upon the lаnd of another and the taking and carrying away of such articles as were not, at common law оr by previous statute, the subject of larceny.
S. v. Vosburg, 111
N. C., 718;
S. v. Beck,
The thought underlying the erection of a tombstone or mаrker at the grave of a deceased person is that of permanency. Its purpose is tо designate the spot where the deceased was buried, to perpetuate his name and to record biographical data as to birth, death, etc. When so erected it becomes а chattel real and is not the subject of the common law crime of larceny.
An indictment for an оffense created by statute must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself; and in order that it shall so appear, the bill must either charge thе offense in the language of the act, or specifically set forth the facts constituting the same. 31 C. J., 703;
S. v. Merritt,
It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. The allegation and proof must correspond.
S. v. Wilkerson,
The bill of indictment charges the larceny of “goods and chattels” — a common law crime. The case was tried on this theory in the court below. The judge in the beginning of his charge said to the jury: “The offense charged is larceny. Larceny is the wrongful and felonious taking and carrying away of personal property of some value belonging to another with the felonious intent,” etc. And the jury was not required to find as a сondition precedent to a verdict of guilty that the defendant, “not being the present owner or bona fide сlaimant thereof . . . willfully and unlawfully entered upon the lands of another.” Nor was any distinction made betwеen the taking with and the taking without felonious intent as set forth in 0. S., 4259.
It seems clear to us, therefore, that the contention of the State that the bill of indictment is sufficient to sustain a conviction under the terms of C. S., 4259, cаnnot be sustained. The fact alone that he was tried for the common law, and not the statutory, offеnse is sufficient answer to this contention. Furthermore, under 0. S., 4259, a trespass upon land is an essential element of the offense thereby created. The bill of indictment fails to contain allegations of this аnd other essential elements of the statutory offense. Nor can the conviction be upheld under 0. S., 4320. There is nothing in the bill of indictment or in the charge of the court to indicate that the defendant was tried and convicted under the provisions thereof. That section creates a misdemeanor and is not defined as larceny.
Defendant was indicted charged with the commission of a common law оffense and the proof favorable to the State tends to show the commission of a statutory оffense. Thus there is a fatal variance between the bill of indictment and the proof.
Where there is a fatal variance between the bill of indictment and the proof, this defect may be taken аdvantage of by motion for judg-. ment as of nonsuit, there being a total failure of proof to suppоrt the indictment.
S. v. Wilkerson, supra; S. v. Harbert,
Tbe defendant must be prosecuted, if at all, under C. S., 4320, or C. S., 4259. Qucere: As C. S., 4320, and cognate statutes relatе expressly to tombstones, graveyards and graves, does this not exclude such property from the provisions of C. S., 4259 ?
The motion for judgment as of nonsuit should have been allowed with leave to the solicitor to send another bill, if so advised
Eeversed.