Indictment — Larceny.
A and B, owners of a mill, employed C as a miller, giving him one-third of the toll received, as compensation for keeping the mill, and the flour alleged to have been stolen was made of undivided toll wheat; Held that in the indictment the ownership of the flour was not properly laid in the miller, but it should have been charged to be the property of A and others.
ASHE, J.
The case of the State v. Patterson, 68 N.C. 292, is decisive of this case. There, the defendant was indicted for larceny in stealing cotton, which was charged in the indictment as the property of W.M. Ballard "and another." The proof was that the cotton was raised by W.M. Ballard on the plantation of J.D. Pemberton, under a verbal agreement that Ballard was to pay Pemberton one-half of the cotton raised; the cotton was stored in the gin-house on the plantation and had not been divided when stolen. Pemberton testified that he considered the cotton as belonging to himself and Ballard. Upon this proof the counsel for the defendant insisted that the cotton until divided was in law the sole property of W.M. Ballard, and that the ownership was improperly charged in the bill of indictment as being the property of W. M. Ballard and another, and that under that bill of indictment the defendant could not be convicted.
His Honor refused to charge as requested, and held that the ownership of the property was properly laid in the indictment, in accordance with Rev. Code, ch. 35, sec. 19. This court sustained the ruling and affirmed the judgment.
The facts of this case bear such close analogy to those of the case under consideration, that the authority of its decision must govern us in holding there was error.
Let this be certified that a venire de novo may be awarded.
Error. Venire de novo.
Cited: Gray v. Warehouse Co., 181 N.C. 170.
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