State v. . Stinnett

Brogden, J. The agent of an automobile finance corporation, the owner and holder of a conditional sales contract covering a truck, observes the purchaser of the truck, who is in default, leave the truck in a public street in front of his residence and go into his home. Thereupon the agent steps into the truck and drives it away to a garage and proposes to hold the same for the finance company until the balance in default is paid. The foregoing fact-status produces this question of law: Does such act of the agent constitute larceny or criminal trespass as defined and contemplated by law? The trial judge ruled correctly in holding that the facts did not constitute larceny. The bill of indictment charged larceny and receiving, and nothing more. The case proceeded to judgment upon the theory of a criminal trespass. It was said in S. v. Woodward, 119 N. C., 836, 25 S. E., 868: “It is sometimes not easy to draw the line of demarcation between what are criminal trespasses and what are only civil trespasses. It is said that to make a forcible trespass (criminal and indictable) 'there must be actual violence used, or such demonstration of force as is calculated to intimidate or tend to a breach of the peace. It is not necessary that the party be actually put in fear.’ ” The distinction between the two gave frequent concern to the judges of a former generation. For instance, Ruffin, J., writing in S. v. Mills, 13 N. C., 420, said: “The objection to the indictment is founded on the position that at common law no trespass either on lands or chattels was indictable without breach of the peace; and that as to chattels, so the law now remains. I do not suppose, that an actual breach of the peace is necessary to make a trespass a crime. But certainly it must be something more than a mere civil injury, or that degree of force, which is expressed by the terms vi et armis.” Pearson, J., in S. v. McCauless, 31 N. C., 375, said: “The gist of the offense of forcible trespass is a high-handed invasion of the actual possession of another, he being present — title is not drawn in question.” Ruffin, C. J., commenting upon S. v. Mills, supra, in S. v. Love, 19 N. C., 267, declared: “The Court consequently held, in S. v. Mills, 2 Dev., 420, that an actual breach of the peace was not necessary to render such a trespass a crime. But we held at the same time, that *832 to constitute it a public offense, it must appear to involve a breach of the peace, or manifestly and directly tend to it; and therefore, that at the least, the taking must be in the presence of the owner, to his terror, or against his will. -The Court is unwilling to extend the principle which has been adopted, and which must as yet be called new; or to weaken the limitation upon it which has just been mentioned, and was also acted on in the case of McDowell and Gray, 1 Hawks, 449. A further relaxation would render it difficult to discriminate between a civil trespass and a criminal one.” Subsequent decisions adopt and sanction the view expressed by former judges. S. v. McAdden, 71 N. C., 207; S. v. Laney, 87 N. C., 535; S. v. Conder, 126 N. C., 985, 35 S. E., 249; S. v. Holder, 188 N. C., 561, 125 S. E., 113. Moreover, it has been definitely determined that a title retaining contract of the type disclosed by the present record, is in effect a chattel mortgage. Harris v. R. R., 190 N. C., 480, 130 S. E., 319. The law confers upon a mortgagee the right of possession which he may exercise before or after default, provided, of course, the taking of the property does not involve a trespass as defined by the decisions. This view was expressed in Jackson v. Hall, 84 N. C., 490. In that case a mortgagee seized a mule, harness and carry-all in the street without the knowledge or consent of the mortgagor. The Court said: “While the defendant invaded no right of the mortgagor in taking and keeping possession until the day of default, whether the property was or was not in danger of being lost or injured, yet he was, meanwhile, acting as trustee, bound to exercise that diligence and care expected of one in the preservation and management of his own property, and to account not only for profits actually received, but for the value of any reasonable and prudent use to which it could have been put without detriment to the property itself,” ote. An examination of the foregoing decisions and others of like tenor leads to the conclusion that the instruction given by the trial judge was erroneous. A perusal of the entire charge discloses that the jury was instructed also to consider the statute “which makes it unlawful for a person to operate a motor vehicle of another person without the knowledge and consent of the owner,” etc. However, a violation of this statute, which is C. S., 2621, subsection 32, was not laid in the bill of indictment, and no person can be convicted of crime unless such crime is included in the bill. While our statute affords ample protection to purchasers of trucks and automobiles from seizure by stealth and lying in wait by agents of finance corporations, notwithstanding a defendant charged with crime in our courts, must be tried upon a proper charge properly laid and preferred. Reversed.