#### THE STATE vs. CALVIN HELMES.

An indictment for “ unlawfully, wickedly and maliciously” cutting and destroying a quantity of standing Indian corn, cannot he supported.

An indictment for malicious mischief will only lie lor the malicious destruction of personal property.

Growing corn, except in a few cases, is regarded as a part of the realty.

The cases of State r. Landreth, 2 Car. L. R. 446. State v. Simpson, 2 Hawks, 460. State v. Scott, 2 Dev. & Bat. 35. State v. Eobinson, 3 Dev. & Bat. 130, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg county, at the Spring Term, 1845, his Honor Judge Bailey presiding.

The defendant was convicted on an indictment for “ unlawfully, wickedly and maliciously” cutting and destroying a *365quantity of standing indian corn, the property of, &e. His counsel moved in arrest of judgment on the ground, that standing indian corn was not such personal property's could be made the subject of malicious mischief. The motion was disallowed by the court, and judgment being pronounced for the State, the defendant appealed.

Attorney General for the State.

No counsel in this court for the defendant.

Nash, J.

The indictment charges, “that the defendant unlawfully, wickedly and maliciously did cut and destroy a quantity of Indian corn,” and concludes at common law. The defendant was convicted by the jury, and, upon a motion to arrest the judgment, the motion was overruled, and judgment given in favor of the State. We are of opinion there was error in the judgment pronounced. It is too late, in this State, to question whether an indictment lay at common law for malicious mischief. The point has been, several times, before the Supreme Court, and it has uniformly been decided that it would. State v. Landreth, 2 Car. L. Rep. 446. State v. Simpson, 2 Hawks, 460. State v. Scott, 2 Dev. & Bat. 35. State v. Robinson and others, 3 Dev. & Bat. 130. In each of these cases, those preceding it have been referred to and approved. It may then be considered the settled law of this State. In the case last cited, the court gave a definition of malicious mischief, which is decisive of this case; it is said “ to consist in the wilful destruction of some articles, of personal property, from actual ill-will or resentment towards its owner or possessor.” The property destroyed must be personal property. The charge against the defendant is, that he cut and destroyed a quantity of standing corn. Standing corn, that is, corn attached to the land and not cut, is not personal property, but savours of, or rather is a part of, the realty. It is true, that to certain purposes and to' a certain extent, growing or standing corn is considered by' the common law as personalty. It is liable to be taken and sold under execution, and, as between the executor and the *366heir, it belongs to the executor; and, in each of these cases, it is considered as personalty, for the same purpose, that is, of subjecting it by fi. fa. to the debts of the owner. In no other case does the common law view it as personalty. Our Legislature, have, for another object, given it the same character. It is made the subject of larceny. Rev. Stat. ch. 34, sec. 24. For no other purpose, either civil or criminal, is that character impressed upon it by the act referred to. And, assuredly, it is not in the power of this court to make the act criminal, to any other or different purpose. It was objected, by the defendant, that the indictment charges the cutting and destroying of standing corn, Were this an indictment under the statute for stealing, the distinction between growing corn and corn standing and unsevered from the earth, might be a very important one¡ In this case for the reasons before given, it is not. The judgment must be arrested»

Per Curiam, Ordered to be certified accordingly.