State v. Hemphill, 20 N.C. 109, 3 Dev. & Bat. 109 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 109, 3 Dev. & Bat. 109

THE STATE v. ANDREW HEMPHILL, et al.

An indictment charging a forcible trespass for taking a slain deer, is not supported by evidence of the forcible taking of a deerskin severed from the body of the deer.

The defendants were tried at Burke on the last circuit before his Honor Judge Dick, upon an indictment for forcibly and with a strong hand taking from the possession of the prosecutor a slain deer. The evidence offered showed that the defendants were hunters, and were, with their dogs, in chase of the deer, and that the prosecutor, not being one of the hunting party, shot and killed the deer. A dispute arose between the defendants and prosecutor as to who had the better title to the game thus taken. They compromised the matter; and it was agreed that the deer should be then skinned, and that the carcass should be the property of the defendants, and the skin should be the property of the prosecutor. Jn pursuance of this agreement, the deer was skinned ; and the defendants immediately thereafter, with strong hand, took the skin from the possession of the prosecutor. His Honor was of opinion,- and so instructed the jury, that this evidence supported the indictment. - The jury found the defendants guilty, and judgment being pronounced thereon> the defendants appealed.

Dec. 1838.

No counsel appeared for the defendants in this Court. 1 1

The Attorney General, for the State.

Daniel, Judge,

after stating the case as above, proceeded : It is not necessary for us to decide the question who in law was entitled to the slain deer, if no agreement had been made between the parties concerning it. The parties having first disputed the title, are now bound by the compromise and agreement. The carcass was by the agreement the property of the defendants ; the skin when severed from the body of the deer, was the property and in the possession of the prosecutor. We do not agree with the Judge, that the evidence of a forcible trespass in taking a deer skin severed from the body, will support an indictment charging the defendants with forcibly taking a slain deer. These articles of property are very different and distinct. If a man indicted for forcibly taking one species of personal property, could be convicted by proof that he took another species of personal property, no man would know how to defend himself: —he would be constantly liable to be entrapped. We are of opinion that there must be a new trial.

Per Curiam. Judgment reversed.