"Larceny at common law was confined to `goods and chattels'; it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof. S. v. Burrows, 33 N.C. 477; 36 C.J., 736, sec. 6. It, as a common law offense, is concerned with personal property only, and its nature has not been altered by the statutes making it larceny to steal things affixed to realty and severed therefrom by the thief. 36 C.J., 736, sec. 6. Therefore, it was not larceny at common law, to steal anything adhering to the soil.
Larceny at common law was confined to "goods and chattels"; it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof. S. v. Burrows, 33 N.C. 477; 36 C. J., 736, sec. 6. It, as a common law offense, is concerned with personal property only, and its nature has not been altered by the statutes making it larceny to steal things affixed to realty and severed therefrom by the thief. 36 C. J., 736, sec. 6. Therefore, it was not larceny, at common law, to steal anything adhering to the soil.
A. says to B., Here is a tract of land which belongs to me, and to which I have a perfect title, free from encumbrances; I will sell it to you and make you a perfect title for $300. B. says, I will give it; and he does give it. It turns out that A. had no title, or an encumbered one, and that he knew it at the time, and intended to cheat and defraud B. out of his money; and B. was defrauded. Is that a false pretense indictable in A.? The defendant says it is not, because false pretense is akin to larceny, and that land is not the subject of larceny, and that neither land nor any transaction conveying land is the subject of false pretense; and for this, S. v. Burrows, 33 N.C. 477, is cited. In that case the defendant had by a false pretense induced the prosecutor to convey to him 20 acres of land, and the charge was "to cheat and defraud the prosecutor of 20 acres of land."
They were false representations made in words by Deinhardt and given an appearance of reality by Herweg's occupation of the premises as a genuine tenant, for which he had lent aid to Deinhardt's scheme. The appellant instances authorities that such a transaction is not a crime, and in them is much learned discussion that it was not a crime at common law nor under the statutes severally considered. ( State v. Klinkenberg, 76 Wn. 466; State v. Eno, 131 Iowa 619, 621; People v. Cummings, 114 Cal. 437; State v. Burrows, 33 N.C. 477.) However, the statutes there under discussion, and which were decided to leave the law unchanged, were not in terms the same as that under which the present indictment is laid, although in one instance it was equally broad.
The law generally seems to be well settled that real estate cannot be the subject of larceny. ( State v. Klinkenberg, 76 Wn. 466; 49 L.R.A. [N.S.] 965; People v. Cummings, 114 Cal. 437; State v. Eno, 131 Iowa 619; Commonwealth v. Woodrun, 4 Clark [Penn.], 207; State v. Burrows, 33 N.C. 477; People v. Deinhardt, 179 A.D. 228.) Does the indictment charge the defendant with larceny of realty?