#### STATE v. MARTIN.

(Filed April 24, 1906).

Malicious Mischief — Elements of Offense — Injury to Electric Gars — Fixtures—Annexation to Land — Intent—Presumptions — Special Instructions — Verdict ■Against Weight of Evidence — Remedy.

1. The mere intention to make a chattel a part of the freehold is not ' by itself sufficient for the purpose of making it so; there must be some kind of physical annexation to the land, though the nature and strength of the union is not material, if it in fact be annexed.

2. Under Revisal, section 3676, an electric street car is personalty so as to render a wilful and wanton injury to it criminal.

3. In order to sustain a conviction at common law for malicious mischief, it must appear that the property was destroyed, and the -act must also have been committed with malice towards the owner of the property.

4. Malicious mischief is not committed when the act alleged to be criminal is prompted by sudden resentment of an injury or a supposed affront; nor is the act wilful and wanton when eom-mitted under like circumstances.

5. The presumption is that the trial court charged the jury fully and correctly, and that the jury found all. the facts necessary to constitute the crime.

6. If a defendant desires a special instruction upon a particular feature of the ease, he must ask for it.

7. Where there is some evidence to support the verdict, if the jury ' decide contrary to its weight, the remedy of the defendant is an application to the judge to set the verdict aside.

8. In an indictment for a misdemeanor there is no error prejudicial to the defendant, by reason of the fact that a person against whom the grand- jury returned "not a true bill” was nevertheless put on trial with the defendant.

*8330. The offense of wanton and wilful injury to property under Revisa!, section 3676, may be committed jointly by two persons, one doing the act, and the other, as prinepal, aiding and abetting him, or participating with him.

10. Though an indictment be returned “not a true bill” as to one of the defendants, testimony competent against both may be used, against the other defendant.

INDICTMENT against Eeed Martin, beard by Judge. B. B. Peebles and a jury, at tbe February Term, 1906, of tbe Superior Court of Foesyth.

Tbe defendant, Eeed Martin, was indicted with Henry Eevels for wilfully and wantonly injuring an electric street car by breaking its windows with a rock. Tbe grand jury, as appears from tbe endorsements on tbe indictment, returned “not a true bill” as to Henry Eevels and a “true bill” as to Eeed Martin. Botb were put on trial.

J. M. Cbitty, a witness for tbe State, testified: “I was motorman of tbe car the day tbe two defendants entered it at Fourth street. After going about a block or two, one of tbe defendants appeared to be intoxicated and was put off tbe car. One of tbe defendants, Eeed Martin, picked up a rock and threw it. Tbe rock missed tbe conductor, but broke a glass in tbe window of tbe car.” There was other testimony on tbe part of tbe State which corroborated this witness. Tbe defendants did not introduce any testimony, but requested tbe court to charge tbe jury that there was a variance between tbe allegation in tbe indictment and the evidence, and that tbe latter would not sustain a verdict-of guilty. This prayer was refused and tbe defendants excepted. Tbe defendant Eevels was acquitted. There was a verdict of guilty as to tbe defendant Eeed Martin, who moved in arrest of judgment. Tbe motion was overruled and be excepted. Judgment was pronounced upon tbe verdict and tbe defendant appealed. He assigned tbe following errors: 1. Tbe refusal of tbe court to instruct the jury, *834as requested, that there was a variance. 2. There was ■ a misjoinder of parties. 3. The offense could not be committed jointly. 4. That testimony competent only against the defendants jointly was admitted and used to convict the defendant Martin, when it appears that the indictment was returned “not a true bill” as to Revels and he was actually acquitted on the trial.

Robert D. Gilmer, Attorney-General, for the State.

J. S. Grogan for the defendant.

Walker, J.,

after stating the case: The learned counsel for the defendant in his argument before us relied chiefly upon the position that the street car was not personal property, and therefore that the alleged offense was not within the language or the meaning of section 3676 of the Revisal. Tie therefore contended that the judgment should be arrested. It does not appear from- the indictment where the car was when it was injured by the defendant, but the evidence shows that it was then being operated on the track of the Eries Power Company in the city of Winston. The defendant’s prayer for instructions is, perhaps, sufficient to raise this question, apart from the motion in arrest of judgment, though it does not distinctly point out this as a defect in the evidence and seems to have been intended to apply only to the question of variance. We will assume that the point is sufficiently presented, as it was clearly intended to be.

The method of changing property, personal in its nature, into realty is well settled in the law. Such property does not become realty by mere use in connection with the land, for if that were true, implements of husbandry, though used only for agricultural purposes, would thereby become a part of the land. Whether or not a chattel’ has become a part of the realty must to a great extent depend upon the facts of the particular case. The mere intention to make it a part of the *835freehold, though it may enter largely into the determination of the question of permanency (Foote v. Gooch, 96 N. C., 270), is not, by itself, sufficient for the purpose of making it so. There must be some kind of physical annexation of the thing to the land, though the nature and strength of the union is not material, if, in fact, it be annexed. The annexation is in some cases by gravitation alone or, in other words, the thing is kept in position by its own weight, as in the case of the planks laid down as the upper floor of a gin house and used to spread cotton seed upon, though not nailed or otherwise fastened to the building. Bryan v. Lawrence, 50 N. C., 337; Latham v. Blakely, 70 N. C., 368. In such a case the planks are necessary for the completion of the structure and essential to its occupation, use and enjoyment for the purpose of the trade or business to which it is adapted and has been appropriated. Latham v. Blakely, supra; Railroad v. Deal, 90 N. C., 110. They have, as it were, a permanent and fixed position, and are in a certain sense stationary — not movable, so as to be in one place today and in another tomorrow. “The very idea of a fixture," says the court, in Beardsley v. Ontario Bank, 31 Barbour, at p. 630, “is of a thing fixed or attached to something as a permanent appendage, and implies firmness in position. But that which becomes by annexation a part of the soil is something more than a fixture, and requires at least as much permanence as to constitute a fixture. The maxim, Quicquid plantatur solo, solo cedit, which tersely expresses the principle, makes the affixing of the chattel to the soil the test by which it is declared to belong to the soil. Hence, courts, in determining the questions that have arisen, have looked at the mode r.ncl intention of annexation, the object and customary use of the thing annexed, and in determining the intention, the character of the claimant has had its weight.” And again at page 635, the court, in discussing the difference between railroad cars and a loom in a factory, says that the latter are *836permanently placed, although not strongly affixed, while rolling stock is incapable of permanence or of being annexed in any one place, as it is intended for, and the whole use is in its' locomotive facilities, and the court then proceeds: “The term by which it is ordinarily designated ‘rolling stock/ implies the very reverse of annexation and a permanent fixture. It is essential to the successful operation of the railroad, but is not a part of the railroad itself. It is a.n accessory to the trade and business of the road, and not to the road itself. The road is completed when the bed is graded, the superstructure laid, the rails put down, and everything is ready for the reception of the locomotives and cars; it is equipped when the rolling stock and all other necessary Appliances and facilities for business are finished and put upon it for use.” That seems to be the leading case in the books. The opinion delivered by Judge Allen (afterwards judge of the Court of Appeals) is devoted to a careful discussion of the subject and goes fully into the authorities. It is well considered and has been followed as a controlling precedent in several subsequent cases. A decision by the same court, in which the question is also learnedly and ably treated and the same conclusion reached, is Stevens v. Railroad, 31 Barbour, 590. The Court of Appeals of New York has expressly affirmed those cases and approved the principles upon which they were decided. Randall v. Elwell, 52 N. Y., 521; Hoyle v. Railroad, 54 N. Y., 314. To the same effect are State Treasurer v. Railroad, 28 N. J. L., 21, and Williamson v. Railroad, 29 N. J. Eq., 311. In the last cited case it is said, at pages 329 and 331, “The criterion for determining whether property ordinarily regarded as personal property becomes annexed to and part of the realty, is the union of three requisites: 1. Actual annexation to the realty or something appurtenant thereto. 2. Application to the use or purpose to which that part of the realty with which it is connected is appropriated. 3. The inten-*837tiou of tbe party making tbe annexation to make a permanent accession to tbe freehold. Tested by tbe foregoing criterion, it is manifest tbat tbe rolling stock of a railroad must be regarded as ebattels wbicb bave not lost their distinctive character as personalty by being affixed to and incorporated with tbe realty. It is true tbat engines and cars are adapted to move on tbe track of tbe railroad, and are necessary to transact tbe business for wbicb tbe railroad wa$ designed. But unattached machinery in a factory, tbe implements of husbandry on a farm, and furniture in a hotel, are similarly adapted for use in tbe factory, on tbe farm, or in tbe hotel, and are equally essential to tbe profitable prosecution of tbe business in wbicb they are employed. When regard is had to tbe fundamental and necessary condition under wbicb the law permits chattels to become a part of tbe realty, engines and cars and tbe rolling stock of a railroad utterly fail to answer tbe requirement of tbe law.” It does not appear in this case tbat tbe power company owned tbe land on which its rails were laid and over which its ears ran. Indeed, it must be tbat it did not, and this is tbe fair inference. Tbe only right it bad, in respect to tbe land, was a license to use tbe streets of tbe city for the operation of its line of railway. This being so, it bad no land of its own to which it could annex its personal property and thereby convert it into realty. Having "only a right to use tbe land for a definite purpose and subject to its joint occupation and use by tbe city and its citizens, so far as they did not interfere with or obstruct the use by tbe company, we cannot suppose that either of tbe parties intended that the nature of tbe property, that is the cars, should be changed from personalty into that of fealty. There is no valid reason for bolding tbat such a change was contemplated or that it was wrought by a mere use of the streets in tbe manner already described. The cars were in no way actually and physically attached to tbe realty, nor were they constructively so annexed, tbe *838latter method implying that there exists both adaptation to the enjoyment of the land and localization in use as obvious elements of distinction from mere chattels personal, which are movable and intended to be so. While there is here an adaptation to use, there is no annexation, no immobility from weight and no localization in use. Were the same contrivance adopted by a tenant for the purpose of carrying on his trade upon leased lands, his right to remove both cars and rails would seem to be beyond question. Hoyle v. Railroad, supra; Moore v. Valentine, 77 N. C., 188; Overman v. Sasser, 107 N. C., 432; Elwes v. Mawe, 3 East., 38 (2 Smith's Leading Cases, 9 Ed., 1888, p. 1423). AVe conclude that the cars were personalty so as to render a wilful and wanton injury to them criminal under section 3676 of the Revisal. But the indictment is not sufficient to sustain a conviction at common law for malicious mischief, as contended by the State. In such a case, it must appear that the property was destroyed, and it will be difficult to find a case where an injury, short of destruction, has been held tc be indictable at common law. The weight of authority both here and in England is decidedly against the proposition that a criminal offense has been committed where there has been mere injury without destruction. State v. Manuel, 72 N. C., 201; State v. Helmes, 27 N. C., 364; State v. Robinson, 20 N. C., 129. The act must also have been committed with malice towards the owner of the property. State v. Robinson, supra; State v. Landreth, 4 N. C., 331; State v. Jackson, 34 N. C., 329; State v. Sheets, 89 N. C., 543. And the indictment must either expressly charge malice against the owner or fully otherwise describe the offense in that particular. State v. Jackson, supra; State v. Hill, 79 N. C., 656. The statute (Revisal, sec. 3676), it seems, was passed to change the law in this respect, though not, perhaps, to supersede the common law as to malicious mischief.

*839There was no variance that we can see with the present record before us. As the charge of the court is not set out, we are unable to know how the judge instructed the jury. We suppose the variance is alleged to consist in the fact that the evidence .tended to show that the rock may have been aimed at the conductor in anger, or in resentment for having been ejected from the car, and that consequently the car was not injured with malice against the owner, .nor yet wilfully and wantonly, as alleged in the indictment. It is undoubtedly true that malicious mischief is not committed when the act alleged to be criminal is prompted by sudden resentment of an injury or supposed affront (State v. Landreth, 4 N. C., 331), nor is the act wilful and wanton when committed under like circumstances, that is, when it is not preconceived and done with reckless indifference to the rights of others, but is merely done impulsively under the influence of suddenly aroused passion. State v. Brigman, 94 N. C., 888. But the jury may have found, under proper instructions from the court, that the deliberate intention was to injure the car and not merely to attack the conductor, and that the act really possessed all the ingredients of a crime within the meaning of the statute and was not done in the heat of passion. It was for the jury to pass upon the evidence and to And the facts. We cannot presume error to have been committed by the court below. The presumption here is the other way. We must take it that His Honor charged the jury fully and correctly, and that the jury found all of the facts necessary to constitute the crime. If the defendant desired any special instruction upon this feature of the case, he should have asked for it. Simmons v. Davenport, 140 N. C., 407. There was some evidence to support the verdict, and if the jury decided contrary to its weight, the remedy of the defendant was an application to the judge to set the verdict aside. Stewart v. Carpet Co., 138 N. C., 60.

The trial proceeded a little irregularly, it seems, in the *840lower court, as the grand jury returned “not a true bill” as to one of the defendants, who was, nevertheless, put on trial. We do not perceive, though, how there has been any misjoinder, nor.why the original defendants could not have jointly committed the offense, one doing the act and the other, as principal, aiding and abetting him, or participating with him. State v. Stroud, 95 N. C., 626; State v. DeBoy, 117 N. C., 702; 1 McClain Cr. Law, sec. 210. “The authorities agree-that there are in misdemeanors no accessories either in name- or in the order of the prosecution. When, therefore, one sustains in misdemeanor a relation which in a felony makes-an accessory before the fact, if what he does is of sufficient magnitude, he is to be treated as a principal; the indictment charges him as such, and unless the pleader chooses to make the allegation in the accessorial form, as he may, it does not mention that the act was through another, and he may be-proceeded against either in advance of the doer or afterward, or jointly with him.” 1 Bish. Cr. Law (8 Ed.), sec. 685; 1 Wharton Cr. Law (9 Ed.), sec. 223. Nor do we-see why the testimony, which was competent against both of' the' defendants, could not be used against this defendant, or how he has been prejudiced by its use, even though the-indictment was returned “not true” as to Revels.

There was no error in the trial and it will be so certified.

No Error.