State v. Turner , 238 N.C. 411 ( 1953 )

77 S.E.2d 782 (1953) 238 N.C. 411

STATE
v.
TURNER.

No. 146.

Supreme Court of North Carolina.

October 14, 1953.

Paul K. Barnwell and W. R. Sheppard, Hendersonville, for defendant-appellant.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Gerald F. White, Member of Staff, Raleigh, for the State.

DEVIN, Chief Justice.

An examination of the record in this case leads us to the conclusion that the evidence offered by the State was insufficient to warrant conviction, and that the motion for nonsuit should have been allowed.

Trees and growth standing and being on land are real property and at common law were not the subject of larceny. State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143. To prevent the wrongful and unlawful cutting and carrying away of wood from the lands of another by one not the owner or bona fide claimant thereof the statute now codified as G.S. § 14-80 was enacted. This statute makes it a criminal offense unlawfully to enter upon the lands of another and carry off wood growing and being thereon, and provides that if this be done with felonious intent the offender shall be guilty of larceny and punished accordingly, and if not done with such intent he shall be guilty of a misdemeanor.

There was here no evidence that the defendant Jasper Turner had been upon the lands of Mr. Youngblood or cut and removed any dogwood therefrom. However, the State relies for conviction upon the application to the facts here of the doctrine of recent possession as stated in State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725, and State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625. But if it be conceded that there was evidence tending to show that some of the dogwood on Blackwell's yard had been cut from Youngblood's land, the evidence does not fix the defendant with possession thereof. According to Blackwell's testimony the only connection of the defendant therewith was that this witness gave him a check for 100 feet of dogwood as result of what somebody told him. The record does not disclose that the defendant said anything as to the delivery of the dogwood from which the samples were taken for comparison, or that he admitted he had delivered any dogwood. Apparently there was no conversation about the check Blackwell gave him. The witness recalled that the defandant made some reference to hauling pulpwood, but this did not relate to the charge of stealing dogwood. We think the evidence was inconclusive, and that the motion for judgment as of nonsuit should have been allowed.

Judgment reversed.