186 Tenn. 252 | Tenn. | 1948
delivered the opinion of the Conrt.
The evidence upon which the conviction is based is that on the 7th day of September, 1947, Williams went upon the cultivated land of Martin and pulled stalks of‘corn from the soil, carried them away and fed them to his cow. The evidence justifies the conclusion that Williams committed this act and that the corn had a value of from $2 to $3. Since, under the errors assigned, we are not concerned upon this appeal with the amount of punishment given, the testimony of witnesses that the commission of offenses of this character was a habit of defendant and had resulted in his serving of a sentence in the penitentiary and in the workhouse, respectively, are of no materiality here.
The error assigned is that the proof '(1) “is of sufficient material variance from the indictment to make indictment void and invalid,” and (2) “does not conform to the charge,” and (3) “has all the ingredients of trespass.”
In support of these assignments of error, all of which may be considered as one, it is insisted by plaintiff in error that “the property was never of a personal nature, but still savoring of the realty, since the severance and asportation constitute one continuous act without cessation until the one as well as the other was completed.” Proceeding upon this premise, it is contended that the property stolen was not “personal property” hut was
Larceny is defined by Code, sec. 10920, as the “felonious taking and carrying away the personal goods of another.” One of the essential ingredients under the common law is the felonious taking possession, actual or constructive, of such personalty from the owner, or from one having possession by authority of the owner. Defrese v. State, 50 Tenn., 53, 60 et seq., 8 Am. Rep. 1, will suffice to illustrate this rule.
A stalk of corn growing in the soil is part of the soil. In that status, such property is a part of the realty, rather than personal property. When this stalk of corn is severed from the soil it becomes personal property at the moment severance is completed. Based upon this rule of law the Court said in Bell v. State, supra-. “If, therefore, the thief sever them at one time, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him upon whose soil they are left or laid, and come again at another time, when they are so turned into personalty, and take them away, it is larceny.”
In the Bell Case the defendant dug the potatoes and cabbage from the soil and, as part of the same act, carried them away. The Court held that this was not larceny, saying: ‘ ‘ The principle is, that when the severance and asportation constitute one continuous act, then it is a
Thus, the contention in the case at bar that under the authority of the Bell Case there is a variance between the indictment and the proof in the fact that the corn carried away was not personal property is not well taken. It was personal property the instant it was severed from the soil. So, if the Bell Case is controlling here, it is only because owner Martin never had possession at the time of or after this corn became personal property by the wrongful severance from the soil.
It is also contended that the indictment in the instant case is fatally defective in that it did not charge that the corn taken was growing corn removed by Williams from the soil. There is very highly respected authority supporting this insistence. We refer to the North Carolina case of State v. Jackson, 218 N. C. 373, 11 S. E. (2d) 149, 151, 131 A. L. R. 143. North Carolina has a statute which is the equivalent of our Code, sec. 10924. The North Carolina Court took the view that the purpose of the statute was to extend the common-law rule as to what might be the subject of larceny, “so as to make chattels real . . . connected in some way with the
When this corn was feloniously removed by Williams, after being taken from the soil, it was undoubtedly personal property and, since the enactment of Code, sec. 10924, did at the moment of severance come into the constructive possession of prosecutor Martin, to whom it belonged, we, therefore, agree with the holding of the Alabama case of Holly v. State that it was not strictly necessary to make the distinct averment that the corn taken'by Williams was severed'by him from the freehold. The indictment correctly charged that he feloniously took
All assignments of error are overruled, and the judgment is affirmed.