STATE V. BURT.

(64 North Carolina, 619. Supreme Court, 1870.)

Nugget. A nugget of gold, separated from the vein by natural causes and found loose upon the surface is parcel of the realty, and when taken and carried away by one continued act, it is not larceny.

Larceny, tried before WATTS, J., at Spring term, 1870, of Franklin Court. There was a special verdict, finding that there was a verbal contract between Burt and the owner of a gold mine, that the former might run a rocker in such mine, paying a certain rent; that the other defendants were working with Burt; that one of these employes found a nugget of gold lying upon the land of the owner of the mine, on the top of a rock pile, not a part of the proceeds of the rocker; and that after consultation with the other defendants, it was appropriated to their own use, and was never accounted for to the owner. His Honor thereupon gave judgment for the defendants, and the solicitor for the State appealed.

ATTORNEY GENERAL, for the appellant; ROGERS & BACHELOR, contra.

DICK, J.

Nuggets of gold are lumps of native metal, and are often found separated from the original veins. When this separation is produced by natural causes, there is no severance from the realty, but such nuggets will pass under a conveyance like ores, and minerals which are imbedded in the earth. When ores and minerals are taken out of mines with expense, skill and labor, to be converted into metals, or used for the purpose of trade and commerce, they become personal property, and are under the protection of the criminal law.

In England, ores, even before they are taken from the mines, are protected by highly penal statutes. St. 7 and 8 Geo. IV, amended by 24 and 25 Vict. Loose nuggets which are occasionally found in gullies and branches, and in woods and fields, are hardly considered by the law as the subjects of determinate property, until they are discovered and

appropriated, and then they become personal goods, and are the subjects of larceny.

In this respect they somewhat resemble treasure trove, waifs, etc., in the criminal law of England.

It is an ancient rule of the cominon law, that things which savor of, or adhere to realty, are not the subject of larceny. In this respect the common law was very defective, and did not afford sufficient protection to many valuable articles of personal property which were constructively annexed to the realty. These defects have in some degree been remedied by a number of statutes in this country and in England.

These beneficial changes were induced by the necessities of progressive civilization, which required many valuable species of personal property to be annexed to realty, to be used for the purposes of trade and manufacture, and in the arts; and which needed the constant protection of the criminal law.

In a case like ours, there is no necessity for the court to depart from the ancient technical strictness of the common law, and there is no need of any additional legislation upon such a subject.

In public estimation it has never been regarded as larceny for the fortunate finder of a nugget of gold, or a precious stone, to appropriate it to his own use, although found upon the land of another person.

Hundreds of instances of this kind have doubtless occurred, and yet no case can be found of a prosecution for larceny on this account, either in the courts of this country or of England. This fact sustains us in the opinion, that for cases like the one before us, there is no necessity to depart from the ancient landmarks established by the fathers of our criminal jurisprudence.

The nugget was found upon a loose pile of rocks by one of the defendants, and the taking and carrying away was one continued act, and did not amount to larceny, but was only a civil trespass: 1 Hale P. C. 510; 2 East P. C. 587; Roscoe Crim. Ev. 459; 2 Russell on Cr. 136; 2 Bish. Cr. Law, s. 779. There was no error in the ruling of his Honor, and the judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

FARNUM V. UNITED STATES.

(1 Colorado, 309. Supreme Court, 1871.)

Amending caption for indictment. Where the style of the court is misdescribed in the caption of an indictment, it may be amended on motion of the District Attorney.

Description of letters in indictment for secreting same. In an indictment

against a mail carrier for secreting or embezzling letters, it is not necessary to state to whom the letters were sent nor by whom they were written.

Mail carrier embezzling bag of gold dust. A defendant can not be convicted under § 12, Act of 1864, when it is not charged that the gold was contained in a letter or packet of letters and there is no count averring that he secreted, embezzled or destroyed any bag of letters containing the gold dust. Under that section, he can not be convicted of a mere embezzlement of gold dust.

Error in instructions. Where a case is tried under a misapprehension of the law, the judgment below must be reversed.

Error to District Court, First Judicial District.

The indictment was entitled, "The District Court of the United States of America, within and for the first judicial district of Colorado territory, of the term of June, in the year of our Lord one thousand eight hundred and seventy. regular term of the District Court of the United States of America, within and for the first judicial district of Colorado territory, begun and held at Denver City, on the fourteenth day of June," etc., etc.

The defendant below moved to quash the indictment, upon the ground that it was entitled of a court not known to the law. He also objected, that there was no offense charged. The district attorney filed a cross-motion to amend the caption. of the indictment by striking out the words "of the United States of America," so as to make the same read "the District Court within and for the First Judicial District."

Defendant's motion was overruled, and the cross-motion allowed. The evidence and the indictment are sufficiently set forth in the opinion. The jury found the defendant guilty.

Messrs. BROWN, IIARRISON & PUTNAM, for plaintiff in error.

L. C. ROCKWELL, U. S. District Attorney, for defendant

in error.

BELFORD, J.

The defendant was indicted at the July term, 1869, of the Arapahoe District Court, for secreting and embezzling one package of letters and two sacks of gold dust, with which he had been intrusted, as mail carrier, and which were intended to be conveyed by post. There are seven counts in the indictment, all charging the same offense, but in the first, sixth and seventh counts, the defendant is charged as a carrier of the mail on the route from Fairplay to Helena, and as being then and there a person employed in a department of the post-office establishment of the United States. The defendant moved to quash the indictment for error in the caption, whereupon the attorney-general filed a cross motion and asked leave to amend the caption, which leave was granted, and the motion to quash overruled. The defendant then entered a plea of not guilty, and was put upon his trial. The jury found. him guilty on the first, third, sixth and seventh counts, and not guilty on the second, fourth and fifth counts. Motions for new trial and in arrest of judgment were overruled.

The first error assigned is the overruling of the motion to quash and permitting the attorney-general to amend the caption of the indictment. It is claimed by the plaintiff in error that the caption is a part of the indictment, and can not be amended. In this view we are unable to concur. Bishop in his work on Criminal Procedure, vol. 1, sec. 151, says: "In matter of legal principle, this extended commencement or caption is no part of the indictment, as sworn to by the grand jury; it is a mere formal statement, which, though placed at the head of the indictment, is still of no higher nature than is an entry on the docket, made in court by the clerk-a thing, which if erroneous, is subject like a docket entry to be corrected by an order of the judge, or when it becomes transferred into the permanent records, to be amended to the same extent as any other part of those records. And it is believed, that though the decided cases may not be very distinct to this effect, and though some of them may even seem to come

short, this doctrine is, on the whole, sustained by adjudged

law."

In Archibald's Criminal Practice, vol. 1, page 260, it is said: "But, though the caption, like the indictment itself, may, if defective, be either quashed by the court or demurred to on the part of the defendant, it differs materially from it in its capacity of amendment, for the return to the court is merely a ministerial act and ministerial acts may be amended at any time according to the common law."

In the case of the United States v. Thompson, 6 McLean, 57, the same objection urged to this indictment, namely, "that the court is not properly entitled," was passed upon, and Judge WILKINS says: "We consider that this objection has been long settled, both in England and in this country."

The caption forms no part of the indictment or presentment of the grand jury, and he adds: "It is only matter of astonishment, that such a technical exception should now be gravely urged in court." Moody v. The State, 7 Blackf. 424; The State v. Gilbert, 13 Vt. 647.

Before proceeding to examine the action of the court in overruling the motion for new trial, and in arrest of judgment, it may be proper to allude to some objections made. to the form of the indictment. It is claimed by the plaintiff in error that the indictment is bad, because it fails to describe the letters which it is alleged the defendant secreted and embezzled. In the case of the United States v. Lancaster, 2 McLean, 433, the court say: "Is it essential that the letter charged to have been embezzled should be described by stating to whom it was directed, and by whom it was written? This description is generally given when it is procurable. But it is seldom in the power of the prosecuting attorney to state these facts, much less to prove them. A postmaster or carrier, after having stolen a letter from the mail, will not be likely to preserve it as the evidence of his guilt. When the act is done deliberately, as may be presumed to be the case, generally, when done by a postmaster, there is not one instance in a thousand, perhaps, when the letter is not destroyed. And, if a particular description of it be essential to the validity of the indictment, a conviction under this or any other similar provisions of the act would be hopeless.