State v. . Hardison ( 1876 )

By their agreement Bond was to take the hog and raise it and fatten it and kill it after it was fit for pork, and then Wiggins was to give Bond one-half of the pork for his trouble and outlay. Under this agreement Bond was put into possession and held it at the time of the larceny.

His Honor was of opinion that these facts created the relation of tenants in common or of copartners. We do not concur, and have a very decided opinion that the relation was that of a (204) bailment for him, the bailee, to have exclusive possession until the animal was fatted and killed. Up to that time Wiggins had no right to the possession, and would have been guilty of a trespass if he had taken the hog away. So there was not a "unity of possession," which is of the very essence of the relation of tenants in common and of copartners.

That an indictment may charge the property to be in a bailee for him who is in possession at the time it is stolen, without joining the bailor, is well settled.

Indeed, it may be doubted whether in this case a joinder of Wiggins would not have made the indictment fatally defective. An indictment for stealing a hog is not supported by proof that the prisoner stole the carcass of the hog — that is, the meat of the hog after it was killed. Wiggins had parted with his property in the hog, but was entitled to the carcass after it was fatted and killed. If the pork had been stolen it would have been proper to charge it as the property of Wiggins, but as the live hog was the subject of the larceny, it was proper to charge it as the property of Bond.

There is error. The court below will proceed to sentence on the case agreed.

PER CURIAM. Reversed.

Cited: S. v. Bishop, 98 N.C. 776; S. v. Allen, 103 N.C. 434.

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