Opinion
(June Term, 1852.)
1. In an indictment, under the act of 1846-7, ch. 70, for injury to a dwelling-house, of which a lessee, his term yet unexpired, has the actual possession, the indictment, if it can lie at all, must state the property to be in the lessee.
2. But the act does not embrace the case of destruction or damage to buildings, etc., by the owner himself, and in law the lessee is the owner during the continuance of his term.
APPEAL from Ellis, J., at Spring Term, 1852, of STANLY. (342)
Indictment for defacing and injuring the dwelling-house of Joshua Hearnes, contrary to the statute. The evidence was that one Bowers leased the house from Hearnes for a time and entered into possession; and when the term was about to expire and Bowers to leave the premises, he took up the flooring plank to carry it away, and at his request the defendant assisted him, knowing that Bowers was the tenant of Hearne. Counsel for defendant moved the court to instruct the jury that he was not guilty, because Bowers occupied the premises as tenant. But the presiding judge was of opinion that the act of 1846-7, ch. 70, was intended to prevent injuries to the freehold, and directed the jury upon the evidence to find the defendant guilty; and after conviction and sentence, the defendant appealed.
Attorney-General for State.
Mendenhall and J. H. Bryan for defendant.
In indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal. And where the injury is alleged to be to a dwelling-house, as in burglary or arson at common law, it is always laid as the dwelling-house of a lessee who is actually in possession, and not of the reversioner. For that reason this indictment could not be sustained, if any could, for there is no ground on which, under this statute, there could be a departure from the usual mode of laying the property in the lessee and occupier. But, in truth, the facts would not support an indictment in any form, because, in the opinion of the Court, the case is not within the act; for, (343) although it protects houses and inclosures from destruction or injury, yet necessarily an exception is to be implied when the destruction or damage is by the owner. The act has in view the preservation of his estate and interest, and therefore has no purpose to restrain the owner's power over his property. The question is, Who is the owner within the meaning of the law? His Honor supposed that the object was to prevent injuries to the freehold merely, and hence that it made willful destruction by a tenant criminal. But that construction cannot be admitted, for it is neither consistent with the words nor the purposes of the act, as is obvious from the consideration that it would make it a crime in a lessee for a long term to "remove a fence" between two fields, while, on the other hand, it would allow the landlord of such a lessee willfully and maliciously to pull down with impunity the dwelling-house on the premises occupied by the tenant, which would be absurd. The act, therefore, renders criminal willful injuries by one person on the houses or inclosures of another person, and there is no reason why in this case, as in others, the property is not to be deemed in him who is at the time in the rightful possession. If it had been intended to embrace the acts of willful waste by a tenant, there would have been express words to take in the case where the premises are in the possession of the offender, as well as in that of another person, as in the modern English statute making it criminal to burn certain houses with an intent to defraud or injure any other person, whether in the possession of the accused or of another. Without some such provision, this act does not extend to waste by a tenant; and if he would not be guilty, neither can one who acts with him, by his directions.
PER CURIAM. Venire de novo.
Cited: S. v. Williams, 44 N.C. 200; S. v. Gailor, 71 N.C. 92; S. v. Watson, 86 N.C. 627; S. v. Whitener, 92 N.C. 799; S. v. Taylor, 172 N.C. 893.
(344)