Opinion
June Term, 1876.
Larceny — Indictment.
An indictment charging the defendant with the larceny of "one bill of fractional currency of the value," etc., and concluding at common law, and not against the statute, is bad; and it was error in the court below not to arrest the judgment.
LARCENY, tried before Cannon, J., at Spring Term, 1876, of JACKSON.
The defendant was charged with stealing a bill of the fractional currency of the government of the value of fifty cents, the indictment concluding at common law, and not against the statute.
The defendant was found guilty, and his counsel moved in arrest of judgment, basing his motion upon the ground (among other exceptions unnecessary to be mentioned) that the indictment was bad, because it did not conclude against the statute.
His Honor overruled the motion and the defendant appealed.
Attorney-General Hargrove for the State.
Ferguson for defendant.
Larceny at common law was the stealing of the goods and chattels of another. A promissory note or other chose in action was neither "goods nor chattels," hence the necessity of a statute to make the stealing of a promissory note or other chose in action an offense of the grade of larceny at common law; in like manner stealing growing corn was not larceny at common law, because it was attached to the realty, and a statute was necessary to create that an offense of the grade of larceny, in other words, to make it larceny.
The indictment concludes at common law, and makes no reference to the statute by which the offense is created. (258) Note the distinction between the cases where the statute merely affects the punishment, and where a statute creates the offense.
The Attorney-General conceded that this defect was not embraced by the statute concerning formal defects in indictments, and he was not able to cite any authority charging as an offense at common law an act that is created an offense by statute. There is error.
PER CURIAM. Judgment arrested.
(259)