State v. . McCoy

Ashe, J. The bill charges that the corn alleged to have been ■stolen was of the goods, chattels and moneys of one J. G. Roberts and the defendant George McCoy.” Lobd Hale says: “Regularly a man cannot commit felony of goods whenever he hath property. If A and B be joint tenants or tenants in common of an horse, and A tabes the horse, possibly animo furandi, yet this is not felony, because one tenant in common, taking the whole, doth but what by the law he may do.” Yol. I, p. f515. And the reason for this is, that there is *468 in fact no taking, for he is already in possession, and talcing is ai material ingredient in the crime of larceny. It is true there are circumstances in which a man may commit, larceny of property of which he is the general owner, as where he takes it with a felonious intent from the special owner in order to charge him with the value. 2 East. P. C., 654; Hex v. Wil-Jcerson, 1 Russ. & Ry., 470; Palmer v. People, 10 Wend., 105. But this doctrine only applies to those cases in which the person in possession sustains to the owner such a relation as to be legally chargeable with the loss of the goods; and in every such case the indictment should lay the property to be in the special owner. Bishop Crim. Pro., §682, and Bishop C. L., §802. Hawkins, in his Pleas of the Crown, lays down the doctrine “that any indictment of larceny must have the words feloniee cepit as well as asportavit; from whence it follows that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away.” Vol. I, p. 142. Where, then, as in the case before us, two persons are joint o'wners or tenants in common of a personal chattel, the one has as much right to the possession as the other, and one cannot maintain au action against the other for a trespass upon his possession ; though it is held he may sustain the action of trover, where the joint property has been destroyed, or, if of a perishable nature, has been so disposed of that the other cannot recover it, which is held to be equivalent to destruction. Lucas v. Wasson, 3 Dev., 398. The law appertaining to the relative rights and possession of landlord and tenant, and the liability of the latter to criminal prosecution for larceny, has been pretty fully expounded in the recent cases of the State v. Webb, 87 N. C., 558, and State v. Copeland, 86 N. C., 691. Possibly an indictment for a misdemeanor might be sustained against the defendant, under The Code, §1759, but this bill of indictment cannot be sustained, and was properly quashed by His Honor in the court below. *469 There is no error. Let this be certified to the superior court of Madison county. No error. Affirmed.