Opinion
(June Term, 1847.)
1. An indictment for stealing a hog is well supported by showing that the defendant stole a shoat.
2. When an indictment alleges the property stolen to be the property of Elizabeth Moore, and the evidence shows it was the property of a woman called Betsey Moore, it must be left to the jury to decide whether the person so described was known by both names.
3. In such an indictment the Christian and surname of the party injured, if known, must be stated; and the name so stated must be either the real name or that by which he is usually known; either is sufficient.
APPEAL from CRAVEN Spring Term, 1847; Pearson, J.
The defendant was indicted for stealing "a hog." The evidence showed that the animal was a boar shoat, between five and six months old. The owner is described in the indictment as "Elizabeth Moore," and it was shown in evidence that she was called Betsy Moore. For these variances the court was requested to direct the jury to acquit the prisoner, which was refused, and the prisoner convicted. The indictment was at common law. The prisoner appealed from the judgment on his conviction.
Attorney General for the State.
No counsel for defendant.
Two questions are presented by the case for our consideration. The indictment charges the stealing of a hog. Is it sustained by the evidence? An indictment for larceny must describe the article stolen with a certainty sufficient to identify it, and this for the purpose not only of enabling the judge to see upon its face that the article is of value, but also for the protection of the accused, to enable him to show, if subsequently called into court to answer for the offense, that he has already been convicted or acquitted of its commission. (211) 4 Bl. Com., 306. And the evidence must correspond with the description of the property laid. Great strictness has been observed by the Court in the application of this rule. When a statute enumerates several different kinds of animals as being the subject of larceny, in an indictment on the statute the animal alleged to be stolen must be described and proved to be of the particular description specified in the statute. Thus, an indictment for stealing a cow cannot be supported by proof of the stealing of a heifer, Rex v. Cooke, 1 Leach, 105; 2 East P. C., 616, when the statute under which the party was indicted mentioned both cows and heifers. So, also, an indictment for stealing a sheep is not supported by proof of stealing a lamb, because the statute enumerates both sheep and lambs. Rex v. Loom, Russ. Mylne, 160. These cases are under statutes taking away the benefit of clergy. But even under statutes 2 3 Ed. VI., against horse stealing, it has been decided that foals and fillies are not included, because the statute mentions only the grown animals. Willand's case, 1 Russ. Ry. Ca. C., 404. Here the indictment is for stealing a hog and the evidence is that it was a shoat. For animals of this description swine is the original generic term. But the Legislature of this State, in legislating on the subject of mismarking, use the term hog as the generic term and consider all animals of that kind as hogs, irrespective of their ages. In Rev. Stat., ch. 17, sec. 1, it is enacted that "All persons shall ear-mark their hogs from six months old and upwards." From six months old they are designated as hogs to be marked; under that age they are still hogs, but there is no obligation to mark them. We think the description sufficiently specific, and that his Honor was correct in overruling the objection. The Court sees that the article alleged to be stolen is of value in the eye of the law, and, if prosecuted a second time for (212) stealing it, the defendant would be at liberty to show by parol testimony, as in other cases, the identity of the article.
Another objection is urged against the conviction. It appears that the owner is described in the indictment as Elizabeth Moore; in evidence it was shown that she was called "Betsy Moore." The court was requested to direct an acquittal for this variance. This request was properly refused. In indictments for offenses against the person or property of another the Christian and surname of the party injured, if known, must be stated, and the name so stated must be either the real name or that by which he is usually known. Either is sufficient, Rex v. Norton, 1 Russ. Ry., 510, and it is a question of fact to be decided by the jury whether he is known by both names. If, therefore, a prisoner wishes to avail himself of the objection he ought to request the judge to instruct the jury that if they found the fact to be that the name given in the indictment to the owner of the property stolen was not his true name, or that he was not known by it, they should acquit the prisoner. Thus in this case the defendant ought to have required the judge to charge the jury that if the owner of the hog was not known by the name of Elizabeth Moore, or that it was not her name, they should acquit the prisoner.
This, however, was not the course pursued. The counsel asked for no instruction to the jury as to the fact, but that his Honor should decide the fact himself and direct an acquittal. This was properly refused. We concur with the presiding judge on both points.
PER CURIAM. No error.
Cited: S. v. Clark, 30 N.C. 228; S. v. Horan, 61 N.C. 573; S. v. Glisson, ibid., 196; S. v. Bell, 65 N.C. 314; S. v. Patrick, 79 N.C. 656; S. v. Credle, 91 N.C. 645; S. v. Hester, 122 N.C. 1049.
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