This is an indictment for petit larceny in stealing two barrels of turpentine, of the goods and chattels of Frederick Grist; and on not guilty pleaded, there was a special verdict to the effect following: Grist owned a piece of land, on which some pine trees were boxed for making turpentine in 1846, and he cultivated them during the months of March and April and a part of May in that year, and he then discontinued the working of them for that season. In August, 1846, the prisoner during two days secretly dipped out of the said boxes, made by Grist, as much turpentine in quantity as two barrels, which had run into the boxes after Grist had discontinued the working in May, *Page 61 and he, the prisoner, put the same into two barrels which he had provided and kept concealed in the woods, and he afterwards carried away the said two barrels of turpentine secretly, and sold them for his own gain. Thereupon, the jury say that they are ignorant whether the said turpentine was the subject of larceny, and, if it be, whether the said facts sustain the allegation that the prisoner stole two barrels of turpentine; and upon those questions they pray the advice of the (71) court, etc. Upon the verdict judgment was given by the court for the prisoner, and the solicitor for the State appealed. Upon the first question the Court is of opinion that the turpentine was the subject of larceny. We learn from a former special verdict, which appears in the record, and from various other sources — including our own observation — that the mode of making turpentine is this: an excavation, commonly called a box, is made in the body of the tree near the ground, into which the turpentine runs from the tree above; and, in order to produce a flow of the gum or to promote it more freely, the tree is occasionally scored above the box with a sharp iron instrument, called a round-shave, and the scoring is done in such a manner as to direct the current of the descending sap into the box; and the turpentine is then collected or dipped out of the box from time to time as it becomes full, during the season of gathering, which ordinarily begins in March and ends in October. The scoring often extends up the body of the tree to the height of ten or fifteen feet, and in its descent a part of the turpentine generally adheres to the tree and becomes hard, while that which remains liquid continues its course downwards until it drips in the box, where it remains until collected and put into casks for use or market. Such being the process in this business, it seems clear that turpentine, when in the boxes in a state to be dipped up, is personalty. It no longer forms a part of the tree, but it exists separate from the tree, and has been separated by a process of labor and cultivation. If, like the sap of the sugar maple, its flow were directed into a vessel set on the ground near the tree, no one would (72) doubt its being severed from the realty. Now, this is the same in substance. For the box, though in the tree, is but a more convenient receptacle for the turpentine after it has been extracted or has been made to exude from the pores which contained it, while in the tree, as a part of it. When it ceases to be a part of the tree, it necessarily becomes a chattel. *Page 62
Upon the other question, however, it is the opinion of the Court that it is a material part of the description of the turpentine that when taken it was in barrels. That would not be so if the term "barrel" imported or could be referred to quantity only; for one may undoubtedly be convicted when the evidence shows a larceny of more or less in measure or weight than is charged in the indictment. But a "barrel" of turpentine, or a "barrel" of flour, or a "hogshead" of tobacco, in agricultural and mercantile parlance, as also in the inspection laws, means prima facie, not a certain quantity merely, but, further, a certain state of the article, namely, that it is in a cask. The statute exacts, for example, that every "barrel of turpentine" shall contain thirty-two gallons and be in good and sufficient casks made of staves of certain dimensions. "A barrel of turpentine" is in a degree a term of art in trade and in the law; and when one says he has so many barrels of turpentine, he is universally understood to mean that number of casks of the statute size, etc., containing turpentine, and, consequently, that the casks, as well as the turpentine, are his. "A barrel" of turpentine or flour is, thus, one thing, constituted by both the cask and its contents; and it is known so to be by that description. Upon that point, therefore, the judgment was properly given for the prisoner.
PER CURIAM. Judgment affirmed.
Cited: Branch v. Morrison, 50 N.C. 17; S. v. Horan, 61 N.C. 574;Lewis v. McNatt, 65 N.C. 65; S. v. Campbell, 76 N.C. 262; S. v. Bragg,86 N.C. 690; S. v. King, 98 N.C. 650; S. v. Kiger, 115 N.C. 750.
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