Larceny — Indictment.
1. At common law, larceny cannot be committed of things which are a part of the freehold at the time they are taken, but by statute in this State, any vegetable or other product, cultivated for food or market, growing, standing, or remaining ungathered in any field, is the subject of larceny.
2. An indictment under this statute which fails to charge that the article alleged to be stolen was cultivated for food or market is fatally defective.
( S. v. Foy, 82 N.C. 679; S. v. Liles, 78 N.C. 496, cited and approved.)
ASHE, J., after stating the facts:
By the common law larceny cannot be committed of things which savor of the realty, and are at the time they are taken a part of the freehold, such as corn and the produce of land. 2 Russell on Crimes, 136; S. v. Foy, 82 N.C. 679.
But the defendant was indicted under the statute which declares: "If any person shall steal or feloniously take and carry away any maize, corn, wheat, rice or other grain, or any cotton, tobacco, potatoes, peanuts, pulse, or any vegetable or other product cultivated for food or market, growing, standing, or remaining ungathered in any field or ground, he shall be guilty of larceny, and punished accordingly." The Code, sec. 1069.
Can the indictment be sustained under the statute? We are of the opinion it cannot. Watermelons are not named in the statute as the subject of larceny, and it is no violation of law to steal them while growing and ungathered, unless by construction they are included in the words of the statute, "or any fruit, vegetable, or other product cultivated for food or market." These words constitute the description of (539) the offense, and unless the indictment follows the language of the statute and expressly charges the offense so as to bring it within the description it is defective. This indictment omits the words "cultivated for food or market," which constitute a material part of the description of the offense. It was so held in the case of S. v. Liles, 78 N.C. 496.
There the defendant was indicted for the larceny of figs, "remaining ungathered in a certain field," etc., and the words, "cultivated for food or market" were omitted, and it was held by this Court that the indictment for that reason was fatally defective. That case is directly in point and is decisive of this.
The judgment is arrested, and this must be certified to the Superior Court of Robeson County.
Error. Judgment arrested.
Cited: S. v. Ballard, 97 N.C. 447.