#### STATE v. C. L. JENKINS.

(Filed 10 December, 1913.)

1i Criminal Law — Landmarks—Indictment—Variance—Evidence.

Tbe question of variance between tbe proof and tbe indictment should be raised upon tbe trial, and is not tbe subject of a motion in arrest of judgment.

2. Criminal Law — Boundaries—Stakes—Landmarks—Interpretation of Statutes.

Stakes placed by tbe agreement of tbe parties to mark tbe boundaries between tbeir lands bave evidential value in connection with other evidence in locating tbe lands, and are landmarks as contemplated by Revisal, sec. 3674, prohibiting tbeir removal.

Appeal by defendant from Garter, J., at September Term, 1913, of BuNcombe.

Indictment under section 3674, Eevisal. Tbe defendant appealed from verdict and judgment.

Attorney-General Bickett and Assistant Attorney-General Calvert for the State.

Britt & Toms for defendant.

Brown, J.

Tbe evidence for tbe State tended to sbow tbat tbe defendant owned a tract of land adjoining a tract owned by one T. L. Justice, and tbat, pending a sale of tbe land by Justice to A. B. Nix or bis wife, tbe defendant and A. B. Nix entered into an agreement to employ a surveyor to survey and establish tbe dividing line.

Pursuant to tbis agreement, the line was surveyed and tbe stake in question was placed, and tbe agreement, return of tbe survey, plat, and order of registration are set up in the record.

Tbe purpose of tbe agreement is shown by tbe testimony of A. A. Hamlet, tbe surveyor, who testified tbat tbe line was run and the stake placed on 30 September, 1911; tbat some-time between tbat date and 13 July, 1913, tbe stake bad been moved about 2 feet from where be placed it, and tbat tbe effect of tbe removal of tbe stake, if tbe line were changed accordingly, would *528be to add approximately an acre to tbe land of Jenkins, and to lessen tbat of Nix in tbe same amount. Other witnesses also testified to tbe removal of tbe stake.

On tbe question as to bow tbe stake was moved and by whom, S. D. 'Williams testified: “Tbat be knows defendant 0. L. Jenkins; bas known bim all bis (witness’s) life; saw defendant Jenkins stobbing a stake down at tbe point described by tbe witness Hamlet; thinks this was in tbe year 1911; it was tbe same time tbat witness Hamlet made tbe survey; thinks tbe time was in November, 1911, when be saw Jenkins setting tbe stake . . . Saw tbe stake driven by witness Hamlet; saw defendant gouging it down or gouging it in tbe ground, and tbe other bole was a few inches from it.”

Tbe prosecuting witness, A. 33. Nix, testified on cross-examination : “That there was feeling between bim and tbe defendant Jenkins; tbat be did not intend for a man to fun over bim; tbat they are bitter enemies; be never saw tbe defendant remove tbe stake, but it bad been removed; tbat Jenkins bad come to bis bouse with a double-barrel shotgun and nailed a notice about 8 feet from one corner of bis bouse, and swore tbat be would kill tbe witness if be crossed tbe path onto bis own land; did not see tbe defendant making tbe line. Jenkins gave bim tbe lie.”

1. Tbe defendant moved in arrest of judgment. Tbe motion was properly denied.

This motion was made on two grounds: “First, tbat a wooden stake is not such a landmark as is contemplated by the statute; and, second, for alleged variance between tbe proof and indictment in tbat tbe agreement as to tbe location of tbe land offered in evidence by tbe State was entered into between the defendant and A. B. Nix, and not between tbe defendant and Nannie Nix, tbe person named in tbe indictment.

These grounds of motion present questions which should have been raised during tbe trial by exceptions. A motion in arrest of judgment must be based upon some matter which appears, or for tbe omission of some matter which’ ought to appear on tbe *529face of the record. S. v. Davis, 126 N. C., 1007; S. v. McLain, 104 N. C., 895; S. v. Douglas, 63 N. C., 500.

Yariance between indictment and proof cannot be taken advantage of by motion in arrest. S. v. Jarvis, 129 N. C., 698; S. v. McLain, 104 N. C., 895; S. v. Craige, 89 N. C., 475.

2. At close of the evidence defendant moved to nonsuit upon the -ground that a stake is not a landmark within the meaning of the statute. This motion was properly denied. As the learned Attorney-General well says in his brief: “The statute, section 3674, in denouncing the removal of any landmark, evidently contemplates the. preservation of any mark or monument, natural or artificial, which might in any event be of evidential value in determining a question of boundary. Questions of boundary are to be determined by a consideration of natural or permanent objects, by artificial monuments and marks, and by courses and distances, and as to which of these controls depends upon the facts and circumstances in the particular ease.”

It is true that this Court has held that stakes are not. such permanent or natural objects and monuments of boundary as will control course and distance, but they are recognized as between the parties as being evidence of a definite location of land, as also is the planting of a stone. Allison v. Kenion, 163 N. C., 582; Lance v. Rumbough, 150 N. C., 19; Higdon v. Rice, 119 N. C., 623; Deaver v. Jones, 119 N. C., 598; Cox v. McGowan, 116 N. C., 131.

An examination of these cases will show that the line actually surveyed* and marked was in many instances marked by stakes.

The case of Barker v. R. R., 125 N. C., 596, referred to in the brief filed for the defendant, properly read, really supports the construction of the word “landmark” in the statute as including stakes, if the word landmark is to be understood as including all marks and monuments, artificial as well as natural, the existence of which would be of evidential value in determining a question of boundary.

In that case the plaintiff sued in ejectment for the possession of land on the ground that a deed he had previously given and *530under wbieb tbe defendant claimed was too indefinite to convey any title, and too vague to be aided by parol evidence.

It appears from tbe description set out in tbe opinion tbat tbe beginning point was described as a stake without any definite location, tbe description continuing witb courses and distances to stakes, and tbe Court beld tbat sucb a description could not be aided by parol, as there was not a single corner fixed by anything more definite than a stake.

It was not beld tbat a stake has no evidential value in connection witb 'other evidence. On tbe contrary, it was beld in tbe same case tbat as tbe land was in fact located and bad been surveyed at tbe time of sale, and as tbe defendant bad been put in actual possession under designated lines and marked corners, tbe defendant was entitled to bold; in tbat case, tbe marked corners must have been tbe stakes referred to in tbe deed placed at tbe time of tbe actual survey, and which would have evidential value in determining tbe locus in quo.

Tbe removal of sucb artificial evidence of location would seem to be within tbe protection of. tbe statute as to landmarks.

No error.