Opinion
(June Term, 1848.)
1. In an indictment for larceny the goods alleged to be stolen may be described by the names by which they are known in trade, and the same principle extends to articles known by particular names in all the arts, pursuits and employments of life.
2. Where a man was indicted for stealing a "bull tongue," and it appeared in evidence that he had stolen a particular kind of ploughshare, usually known in the neighborhood in which he resided by that name: Held, that the allegation of the indictment was well supported by the evidence.
APPEAL from the Superior Court of law of RANDOLPH, at Spring Term, 1848, Pearson, J., presiding.
Attorney-General for the State.
No counsel for defendant.
The defendant was tried at Randolph, on the last spring circuit, before his Honor, Judge Pearson, on the following bill of indictment:
STATE OF NORTH CAROLINA — Randolph County.
Superior Court of Law, Spring Term, 1848.
The jurors for the State upon their oath present that John Clark, late of said county, on 1 May now last past, with force and arms in the county aforesaid, one bull tongue of the value of sixpence, and one piece of iron of the value of sixpence, of the goods and chattels of one Thomas Winslow, then and there being found, feloniously did steal, take and carry away, against the peace and dignity of the State.
The testimony on the part of the State proved that the defendant had stolen a ploughshare belonging to the prosecutor; that the ploughshare in question was a long piece of iron, sharpened at the point and widened and flattened in the middle, so as to be in the shape of the tongue of a bull, and that it was usually called a "bull tongue," though it was sometimes (227) also called a gopher.
Upon this testimony the defendant's counsel moved the court to instruct the jury that the allegation of the article stolen, being a piece of iron, was not supported by the evidence, and that the allegation of its being "one bull tongue" was too vague and indefinite to justify a conviction, for the reason that "bull tongue," as applied to a species of ploughshare, was a mere local term. His Honor instructed the jury as requested, upon the first point, saying that although the article stolen "was made of iron, yet when it was shaped and formed into a distinct article, such as a ring, or clevis, or ploughshare, it was no longer a mere piece of iron." Upon the second point he charged "that if the jury believed from the evidence that the defendant had stolen a ploughshare, which was usually called a bull tongue, the charge in the indictment was sufficiently specific to justify a verdict." The jury found the defendant guilty, when he moved for a new trial, which was refused. He then moved in arrest of judgment, which was also refused, and judgment being pronounced, he appealed.
In an indictment for larceny the article charged to be stolen must be properly and sufficiently described, so that there may be no doubt of its identity. This is required for the purpose of enabling the court to see that the article is of value, and also for the protection of the accused, by informing him of the distinct charge against him and furnishing him with the means of showing, if subsequently indicted for the same offense, that he has already been convicted or acquitted (228) of its commission. S. v. Godet, 29 N.C. 210. And the evidence must correspond with the description of the property laid. Ibid. Many nice questions have been raised on this subject, and some of the cases have turned upon distinctions savoring of almost too much refinement. See the note to the case of the King v. Halloway, 1 Carr. and Payne, 127 (11 Eng. C. L., 341). Goods may be described by the name by which they are known in trade. King v. Nibbs, R. and Ryan, 25; Arch. Crim. Pl., 170. The same principle must extend to articles known and used in all the arts, pursuits and employments of life. In the note to the case of King v. Halloway, above referred to, the reporter, after stating that it is particularly necessary to be precise in an indictment with regard to the description of stolen property, says that it is best, at least in one count, to call the thing by the name by which the witnesses will call it in their testimony. This is certainly in furtherance of the main purposes for which a definite description is necessary, that is, to inform the accused of the precise charge against him, and to enable him to defend himself against a subsequent indictment for the same offense.
In the case before us it would have been better, undoubtedly, to have described the stolen article as one ploughshare, commonly called and known by the name of a bull tongue. But we think that the appellation simply of "bull tongue" is sufficient. A certain species of ploughshare, made in the shape of the tongue of a bull, was, as the witness stated, usually called a bull tongue, and though it appeared that it was sometimes called by another name, yet the defendant could hardly have been mistaken as to the article with the stealing of which he stood charged.
The counsel, indeed, objected that the name applied was a mere local one, but it does not appear that the name of the article stolen is less extensive than its use. We think, therefore, that there was no error in the charge of the court upon this point, which is the only one necessary for us (229) to decide.
The reasons for the motion in arrest of the judgment are not stated, and we see none.
PER CURIAM. No error.
Cited: S. v. Horan, 61 N.C. 573; S. v. Patrick, 79 N.C. 656; S. v. Bragg, 86 N.C. 690; S. v. Credle, 91 N.C. 645.