{
  "id": 1955370,
  "name": "STATE v. HARVEY BUTLER and HARDY JOHNSON, Jr.",
  "name_abbreviation": "State v. Butler",
  "decision_date": "1871-01",
  "docket_number": "",
  "first_page": "309",
  "last_page": "310",
  "citations": [
    {
      "type": "official",
      "cite": "65 N.C. 309"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T18:41:56.423501+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. HARVEY BUTLER and HARDY JOHNSON, Jr."
    ],
    "opinions": [
      {
        "text": "Dick, J.\nCattle in the range are in the constructive possession of the owner, and are the subjects of larceny. When it is larceny to steal the animal itself, it is so to steal its product ; as to take milk from a cow or to pluck wool from the backs of sheep, if done animo fwrandi. Martin's case, 1 Leach 171; but the articles taken must be set out eo nom\u25a0ine in the indictment. To cut off and take away the ears or tail of a cow, might be malicious mischief, or might be indictable under the Act of 1866, ch. 57 ; but it would not be larceny, as they are of no value as articles of property. It is certain that a person cannot be convicted on an indictment at common law, for stealing a cow upon evidence that only the ears were taken.\nMerely shooting down an animal with felonious intent, is not an asportation sufficient to constitute a larceny of the animal. 2 Bishop 807. To supply this defect in the common law, and to afford protection to the owners of domestic animals, several statutes were passed in England at various-times which were replaced by 24 and 25 Victoria ch. 96. Roscoe 351. An Act for the same purpose was passed in this State, making it a misdemeanor punishable as larceny for a person to pursue, kill or wound any horse, cattle, &c., \u201c with the intent unlawfully and feloniously to convert the same to his own use.\u201d Act, supra. William's case, 1 Moody 107, was an indictment under 14 Geo. 2, and contained two counts. The first count charged the prisoner with stealing three sheep, &c. The second count was for killing the sheep with intent to steal the whole of the carcasses.\nIt appeared in evidence that the sheep were in the field of the prosecutor on a certain evening, and early the next morning, they were found killed and cut open, and the fat taken out and carried away, &c. The Judges held that the second count was supported; but not the first, which was for larceny.\nThe indictment in this case, is not under the Act above referred to, but is for larceny at common law; and we are of the opinion, that there was no evidence of an asportation of the cow to be submitted to the jury.\nThere was error in the charge of his Honor, and there must be a venire de novo.\nLet this be certified.\nPee Gubiam. Yeni/re de novo.",
        "type": "majority",
        "author": "Dick, J."
      }
    ],
    "attorneys": [
      "Busbee & Busbee, for the defendants.",
      "Attorney General, contra."
    ],
    "corrections": "",
    "head_matter": "STATE v. HARVEY BUTLER and HARDY JOHNSON, Jr.\nAn indictment at common law for larceny in stealing a cow is not sup* ported by proof that the cow was shot down, and her ears cut off by the defendants. Such acts would have supported an indictment for malicious mischief, or an indictment, under the Act of 1866, eh. 57, for injuring live stock with intent to steal them.\nThe defendants were indicted for larceny at common law in stealing a cow, and on the trial at the Fall Term, 1870, of the Superior Court of Bertie County, before his Honor, \u25a0Judge Pool, it was proved that the cow was badly shot, and her ears were cut off. The defendants\u2019 counsel contended that no larceny of the cow had been committed, and asked \u25a0his Honor so to instruct the jury, but he charged them that if they believed the defendants had shot the cow down with intent to steal her, and in the attempt to appropriate her feloniously to their use had cut off her ears, they were guilty of larceny. There was a verdict of guilty, and from the judgment thereon, the defendants appealed.\nBusbee & Busbee, for the defendants.\nAttorney General, contra."
  },
  "file_name": "0309-01",
  "first_page_order": 319,
  "last_page_order": 320
}