State v. . Alexander

Supreme Court of North Carolina

State v. . Alexander

74 N.C. 232

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1876

StatusPublished

Cited by10 cases

This text of 74 N.C. 232 (State v. . Alexander) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Alexander, 74 N.C. 232 (N.C. 1876).

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Opinion

Bynum, J.

The defendant was indicted for stealing a hog running at large in the “range.” The hog was found dead, having been shot. Its ears had been cut off, and one of its hams skinned, but the skin had not been severed from the animal, no part being cut off except the ears. There was no evidence that the hog had been killed elsewhere than where found, or had been removed from the spot where it had been killed. There was evidence that the defendant shot the hog and did the skinning. His Honor charged the jury, that if the defendant shot and skinned the hog, as alleged, and had it under his control, with the intent to steal, there was in law a sufficient asportation, and he was guilty. There is error.

*233 To complete the crime of larceny, it is not sufficient that the defendant had the control of the article, that is, had the power to remove it, but there must be an asportation of the thing alleged to have been stolen. It is true, a very slight as-portation will be deemed sufficient, yet there must be some removal to complete the offence. The case here shows that! there was no removal of the hog, but that it remained in\ situ, as it had been shot down. In the State v. Jones, 65 N. C., 395, it was held that the turning of a barrel of turpentine, which was standing upon its head, over upon its side, with a felonious intent, was not such an asportation as constituted larceny. So in the State v. Butler, 65 N. C., 309, which is a case almost identical with this, it was held, that an indictment at common law, for stealing a cow, is not supported by proof that the cow was shot down and her ears cut off by the defendant with a felonious intent, because there was no aspor-tation of the cow, the thing charged to have been stolen. These cases and others of our own, as well as English, are decisive. State v. Jackson, 65 N. C., 305; Roscoe, 570, 2 Bish. Cr. Law, 804; 2 East, P. C., 556.

Per Curiam. Judgment reversed.

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Bynum, J.

The defendant was indicted for stealing a hog running at large in the “range.” The hog was found dead, having been shot. Its ears had been cut off, and one of its hams skinned, but the skin had not been severed from the animal, no part being cut off except the ears. There was no evidence that the hog had been killed elsewhere than where found, or had been removed from the spot where it had been killed. There was evidence that the defendant shot the hog and did the skinning. His Honor charged the jury, that if the defendant shot and skinned the hog, as alleged, and had it under his control, with the intent to steal, there was in law a sufficient asportation, and he was guilty. There is error.

*233 To complete the crime of larceny, it is not sufficient that the defendant had the control of the article, that is, had the power to remove it, but there must be an asportation of the thing alleged to have been stolen. It is true, a very slight as-portation will be deemed sufficient, yet there must be some removal to complete the offence. The case here shows that! there was no removal of the hog, but that it remained in\ situ, as it had been shot down. In the State v. Jones, 65 N. C., 395, it was held that the turning of a barrel of turpentine, which was standing upon its head, over upon its side, with a felonious intent, was not such an asportation as constituted larceny. So in the State v. Butler, 65 N. C., 309, which is a case almost identical with this, it was held, that an indictment at common law, for stealing a cow, is not supported by proof that the cow was shot down and her ears cut off by the defendant with a felonious intent, because there was no aspor-tation of the cow, the thing charged to have been stolen. These cases and others of our own, as well as English, are decisive. State v. Jackson, 65 N. C., 305; Roscoe, 570, 2 Bish. Cr. Law, 804; 2 East, P. C., 556.

Per Curiam. Judgment reversed.

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Bluebook (online)

74 N.C. 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alexander-nc-1876.

Opinion

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