State v. . Mason , 35 N.C. 341 ( 1852 )

In indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal. And where the injury is alleged to be to a dwelling-house, as in burglary or arson at common law, it is always laid as the dwelling-house of a lessee who is actually in possession, and not of the reversioner. For that reason this indictment could not be sustained, if any could, for there is no ground on which, under this statute, there could be a departure from the usual mode of laying the property in the lessee and occupier. But, in truth, the facts would not support an indictment in any form, because, in the opinion of the Court, the case is not within the act; for, (343) although it protects houses and inclosures from destruction or injury, yet necessarily an exception is to be implied when the destruction or damage is by the owner. The act has in view the preservation of his estate and interest, and therefore has no purpose to restrain the owner's power over his property. The question is, Who is the owner within the meaning of the law? His Honor supposed that the object was to prevent injuries to the freehold merely, and hence that it made willful destruction by a tenant criminal. But that construction cannot be admitted, for it is neither consistent with the words nor the purposes of the act, as is obvious from the consideration that it would make it a crime in a lessee for a long term to "remove a fence" between two fields, while, on the other hand, it would allow the landlord of such a lessee willfully and maliciously to pull down with impunity the dwelling-house on the premises occupied by the tenant, which would be absurd. The act, therefore, renders criminal willful injuries by one person on the houses or inclosures of another person, and there is no reason why in this case, as in others, the property is not to be deemed in him who is at the time in the rightful possession. If it had been intended to embrace the acts of willful waste by a tenant, there would have been express words to take in the case where the premises are in the possession of the offender, as well as in that of another person, as in the modern English statute making it criminal to burn certain houses with an intent to defraud or injure any other person, whether in the possession of the accused or of another. Without some such provision, this act does not extend to waste by a tenant; and if he would not be guilty, neither can one who acts with him, by his directions.

PER CURIAM. Venire de novo.

Cited: S. v. Williams, 44 N.C. 200; S. v. Gailor, 71 N.C. 92; S.v. Watson, 86 N.C. 627; S. v. Whitener, 92 N.C. 799; S. v. Taylor,172 N.C. 893.

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