#### STATE v. JASPER TURNER.

(Filed 14 October, 1953.)

1. Larceny § 1—

The cutting and removing of growing timber from the land of another with felonious intent constitutes larceny by virtue of G.S. 14-80, notwithstanding that the growing timber is realty.

3. Larceny § 7—

Testimony that defendant was paid for dogwood delivered to a wood-yard, without evidence that defendant actually delivered the wood, with further evidence that dogwood taken from the yard fitted stumps on prosecuting witness’ land from which the wood had been wrongfully taken, is *held,*insufficient to be submitted to the jury in a prosecution under G.S. 14-80, the evidence being insufficient to invoke the doctrine of recent possession against defendant, since the evidence does not disclose that defendant had been in possession of the wood.

Appeal by defendant from *Sink, J.,*March Term, 1953, of HeNdersoN. Eeversed.

The defendant was convicted of larceny of wood. G-.S. 14-80.

The bill of indictment charged that the defendant “did wilfully, unlawfully and feloniously enter upon the lands of B. H. Youngblood and did unlawfully, wilfully and feloniously take and carry off wood and timber of value of $200, commonly known as dogwood, growing and being on the property of B. H. Youngblood.”

The State offered evidence tending to show that B. H. Youngblood missed some dogwood from his land in January, 1953, and again during the month of February. E. C. Blackwell testified he paid defendant for some dogwood in January. Four loads were delivered. “I paid him for 150 feet of dogwood down at the barn — I paid him by check in the evening. I was not at home when the dogwood was brought. I do not know of my own knowledge who brought the dogwood. I did not see him or anyone else unload the dogwood.. I buy dogwood and it is a general business with me. At the time I paid the defendant I had 15 or 20 cords (on the yard) and paid the defendant for one cord. ... I take raw dogwood and manufacture it there in the yard. . . . About 100 feet was brought when I was not there. This is nearly a cord. This was delivered when -I was away from home. "When I measure it I throw it in the general pile of 15 or 20 cords.” This witness further testified that defendant did not say he delivered ,the dogwood, that he did not mention it; that witness simply paid him for 100 feet as result of what he had been told. The amount was less than $100. Defendant said he had been hauling some pulpwood. Some pieces of the dogwood taken from the dogwood at Blackwell’s yard were compared with the stumps and wood *412on Youngblood’s land, and evidence was offered tending to show they were identical.

At tbe close of tbe State’s evidence defendant moved for judgment of nonsuit. Tbe motion was overruled, and tbe defendant excepted.'

There was verdict of guilty and from judgment tbereon defendant appealed.

*Attorney-General McMullan, Assistant Attorney-General Moody, and Gerald F. White, Member of Staff, for the State.*

*Paul K. Parnivell and W. R. Sheppard for defendant, appellant.*

DeviN, C. J.

An examination of tbe record in tbis case leads us, to tbe conclusion tbat tbe evidence offered by tbe State was insufficient to warrant conviction, and tbat tbe motion for nonsuit should have been allowed.

Trees and growth standing and being on land are real property and at common law were not tbe subject of larceny. *S. v. Jackson,*218 N.C. 373, 11 S.E. 2d 149. To prevent tbe wrongful and unlawful cutting and carrying away of wood from tbe lands of another by one not tbe owner or *bona fide*claimant thereof tbe statute now codified as Gr.S. 14-80 was enacted. Tbis statute makes it a criminal offense unlawfully to enter upon tbe lands of another and carry off wood growing and being tbereon, and provides tbat if tbis be done with felonious intent tbe offender shall be guilty of larceny and punished accordingly, and if not done with such intent be shall be guilty of a misdemeanor.

There was here no evidence tbat tbe defendant Jasper Turner bad been upon tbe lands of Mr. Youngblood or cut and removed any dogwood therefrom. However, tbe State relies for conviction upon tbe application to tbe facts here of tbe doctrine of recent possession as stated in *S. v. Holbrook,*223 N.C. 622, 27 S.E. 2d 725, and *S. v. Weinstein,*224 N.C. 645, 31 S.E. 2d 920. But if it be conceded tbat there was evidence tending to show tbat some of tbe dogwood on Blackwell’s yard bad been cut from Youngblood’s land, tbe evidence does not fix tbe defendant with possession thereof. According to Blackwell’s testimony tbe only connection of the defendant therewith was tbat tbis witness gave him a check for 100 feet of dogwood as result of what somebody told him. Tbe record does not disclose tbat tbe defendant said anything as to tbe delivery of tbe dogwood from which tbe samples were taken for comparison, or tbat be admitted be bad delivered any dogwood. Apparently there was no conversation about tbe check Blackwell gave him. The witness recalled tbat tbe defendant made some reference to hauling pulpwood, but tbis did not relate to tbe charge of stealing dogwood. *We*think tbe evidence was inconclusive, and tbat tbe motion for judgment as of nonsuit should have been allowed.

Judgment reversed.