{
  "id": 11274436,
  "name": "STATE v. ALBERT KIRKLAND",
  "name_abbreviation": "State v. Kirkland",
  "decision_date": "1919-12-20",
  "docket_number": "",
  "first_page": "810",
  "last_page": "813",
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    {
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      "cite": "178 N.C. 810"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "169 N. C., 378",
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    {
      "cite": "103 N. C., 430",
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      "reporter": "N.C.",
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      "cite": "61 N. C., 154",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "19 N. C., 297",
      "category": "reporters:state",
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      "case_paths": [
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    {
      "cite": "85 N. C., 568",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T18:32:08.818827+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. ALBERT KIRKLAND."
    ],
    "opinions": [
      {
        "text": "AlleN, J.\nIt will be observed that his Honor charged the jury: (1) That the intent to appropriate to his own use is not an essential element in larceny; (2) that depriving another of the possession of goods is sufficient; (3) that feloniously is doing an unlawful act willfully, which is not in accord with the authorities in this State and elsewhere, and more fitly describes a criminal trespass, in which the act must be done unlawfully and willfully (S. v. Whitaker, 85 N. C., 568), than larceny.\nRuffin, C. J., says, in S. v. Jesse, 19 N. C., 297, feloniously \u201chas no synonym,\u201d and \u201cadmits of no substitute,\u201d and Battle, J., in S. v. Sowls, 61 N. C., 154, in defining robbery, which is larceny from the person by violence, says the taking \u201cmust be done animo furandi, with a felonious intent to appropriate the goods taken to the offender\u2019s own use. Roscoe\u2019s Or. Ev., 895. Although a person may wrongfully take the goods, yet, unless he intended to assume the property in them, and to convert them to his own use, it will' amount to a trespass only, and not to a) felony. 1 Hale\u2019s P.. C., 890.\u201d\nIn S. v. Powell, 103 N. C., 430, Shepherd, J., reviews the authorities, and quotes from the leading text-books with approval as follows:\n\u201cIt (the taking) must be done,\u201d says Foster, 124, \u201cwith a wicked, fraudulent intention, which is the \u2018ancient known definition of larceny: Fraudulenta obstrectatio rei alienoe invito domino/\n\u201cLord Hale, P. C., 508, says: \u00a3As it is cepit and asportavit, so it must be felonice or animo furandij otherwise, it is not. felony, for it is the mind that makes the taking of another\u2019s goods to be a felony, or a bare \u2022 trespass only; but because the intention and mind are secret, the intention must be judged by the circumstances of the fact.\u2019\n\u201c \u2018The felonious intent, or animus furandi, means an intent fraudulently to appropriate the goods. \"Whether the intent existed or not is entirely a question for the jury, which, as in all other cases of intent, they must all infer from the words or acts of the defendant or the nature of the transaction.\u2019 Archbold Grim. Practice and PL, 2 vol., 6 ed., 366-4.\n\u201cIn his Pleading and Evidence, 3 Am. Ed., 173, Archbold thus defines the felonious intent: \u2018But larceny, as far as respects the intent with which it is committed, . . . may, perhaps, correctly be defined thus: where a man knowingly takes and carries away the goods of another, without any claim or pretense of right, with intent wholly to deprive the owner of them, and to appropriate or convert them to his own use.\u2019 \u201d\nAgain, as to the charge that it is sufficient if the intent exists to deprive the owner of the possession instead of the property itself, in S. v. Ledford, a new trial was ordered because of an instruction, \u201cThat to constitute larceny as to the taking, that all that was necessary was to prove that the defendant took the property with intent to remove it out of the possession of the owne*r,\u201d and in S. v. Lyerly, 169 N. C., 378, the following charge was approved as \u201csupported by the precedents\u201d : \u201cThat if they.should find from the evidence, beyond a reasonable doubt, that the defendant obtained possession of the $50 bill, under the circumstances testified to by the prosecuting witness, with \u2018an existing felonious intent permanently to deprive the prosecutor of his ownership in the money, and to convert it to his. own use, and in pursuance of such intent, and in the execution of such design\u2019 did as testified to by the prosecuting witness, they should return a verdict of guilty of larceny, as charged.\u201d (The language \u201cdid as testified to by the prosecuting witness\u201d is a summary by the court, and was not used by the presiding judge.)\nIn 17 R. C. L., 5, one of the latest authorities, and reliable, defines larceny: \u201cAs the felonious taking by trespass and carrying away of the goods of another, without the consent of the latter, and with the felonious intent permanently to deprive the owner of his property and to convert it to his, the taker\u2019s own use,\u201d a definition following the decisions in our State, and which we approve with the interpretation that the intent to convert to one\u2019s own use is met by showing an intent to deprive the owner of his property permanently for the use of the taker, although he might have in mind to benefit another.\nHis Honor also charged the jury, after stating certain contentions of \u2022 defendant, that, \u201cIf that satisfies you to your own satisfaction, it would be your duty to return a verdict of not guilty,\u201d a form of instruction disapproved in S. v. Harrington, 176 N. C., 716, because it \u201cWas calculated to mislead the jury into the error that the guilt of the defendants turned upon whether the explanation was a satisfactory one; whereas, it should have been made to turn upon all the evidence, that of the State and the defendants, and the sole inquiry should have been whether the State had carried successfully its proper burden and satisfied the jury, beyond a reasonable doubt, of their guilt.\u201d\nWe have not overlooked the motion for judgment of nonsuit, but the record does not purport to give the entire evidence, and parts of the charge, stating the contentions of the State and defendant, to which there is no exception, show that much that is material has been omitted, and we cannot therefore pass on th\u00e9 motion.\nWe are of opinion that prejudicial error is shown in the instructions to the jury, and for this reason a new trial is ordered.\nNew trial.",
        "type": "majority",
        "author": "AlleN, J."
      }
    ],
    "attorneys": [
      "Attorney-General Manning and Assistant Attorney-General Nash for the State.",
      "Dillard & Hill, Sherrill & Harwood, and Frye & Frye for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ALBERT KIRKLAND.\n(Filed 20 December, 1919.)\n1. Larceny \u2014 Definition\u2014Criminal Law \u2014 Instructions\u2014Appeal and Error\u2014 Reversible Error.\nLarceny is the wrongful taking of the property of another with the intent to permanently deprive the owner, by the taker\u2019s converting it to his own use or for the benefit of a third person; and a charge to the jury that the intent is not an essential element of the offense, but that depriving the owner of the possession is sufficient, or that feloniously, in this sense, is doing an unlawful act willfully, is prejudicial and reversible error. \u25a0\n2. Criminal Law \u2014 Instructions\u2014Evidence\u2014Appeal and Error \u2014 Reversible Error.\nAn instruction upon a criminal trial that if the contentions of the defendant satisfied the jury beyond a reasonable doubt, to render a verdict of acquittal is erroneous, the defendant having a right to an acquittal if they find in his favor upon all the evidence, that of the State, as well.\n3. Appeal and Error \u2014 Evidence\u2014Nonsuit\u2014Record.\nThe Supreme Court, on appeal, will not pass upon a motion for judgment as of nonsuit upon the evidence when the record shows that all the material evidence for its consideration was not set out therein.\nAppeal by defendant from Ray, J., at tbe July Term, 1919, of SwaiN.\nThis is an appeal from a judgment pronounced upon a verdict of guilty of the charge of the larceny of certain lumber, the property of A. T. Dorsey.\nThere was evidence that about three years ago the prosecuting witness, Dorsey, procured a right of way from the defendant to erect and operate a flume over defendant\u2019s land for transporting lumber and wood, which was afterwards erected and operated by Dorsey. The flume ran something like one-half mile over the defendant\u2019s land, and prior to and at the time of the alleged larceny there were frequent jams in the flume, which caused the lumber and wood to be thrown out of the flume on the defendant\u2019s land, and in close proximity to tbe creek. The lumber alleged to have been stolen was piled up in the barn and house of the defendant, which were both situated near the road where the public and Dorsey\u2019s hands passed and repassed, and could have heen easily seen by any one. Eight or ten witnesses testified that the defendant was a man of good character, and in fairly good circumstances. The defendant sometimes broke jams in the flume in order to protect his land from overflow of water caused by the dam, as well as for the benefit of the prosecuting witness Dorsey. The defendant was a man of. something more than fifty years of age, and had never been indicted or charged with any criminal offense. His Honor charged the jury, among other things, as follows:\n\u201cIt has been argued here that there must be a definition of larceny, which definition should include appropriating them to the use of the parties stealing them. That has no basis in the definition, because it is not the intention of appropriating to one\u2019s own use that makes a man guilty, but the fact that he deprives another of the possession of his goods, no matter whether it is his intention, it might be to destroy them or merely to aggravate and deprive the owner of the property, and necessarily to appropriate them to the use of the party having them.\u201d The defendant excepted.\n\u201cThe taking must he felonious. Felonious, as the court understands it, is the doing of an unlawful act willfully. It becomes necessary that' I give you the definition of willfully, because if the crime was committed, the act, in the first place, in this bill of indictment must be felonious. And the doing of that act, which, if committed, would be unlawful, must be done willfully, and the term willfully implies the doing of the act purposely and deliberately, in the violation of the law.\u201d The defendant excepted.\nThere was a motion for judgment of nonsuit, which was overruled, and the defendant excepted.\nAttorney-General Manning and Assistant Attorney-General Nash for the State.\nDillard & Hill, Sherrill & Harwood, and Frye & Frye for defendant."
  },
  "file_name": "0810-01",
  "first_page_order": 876,
  "last_page_order": 879
}