
    STATE v. JOHN McLEOD.
    An indictment for larceny, charging, in one count, the thing stolen to be “a certain writ of ji. fa. belonging to the Superior Court,” — in another count “a certain process of and belonging to the Superior Court,” and in a third “ a certain record of and belonging to the Superior Court,” is too vague to authorise a conviction under it.
    An allegation in a bill of indictment, charging that the defendant stole a fi. fa. issued from, the Superior Court office is not sustained by proof that the A fa. was made out, but retained by the clerk, at the instance of the defendant, until the amount was paid to Mm.
    INDICTMENT for lARoeny, tried before Saunders, J., at the last Spring Term, of Randolph Superior Court.
    . The defendant was indicted on the following bill of indictment, viz:
    “ State of North Carolina, Randolph county, ) Superior Court of Law, Fall Term, 1857. j
    “ The jurors for the State, upon their oaths present, that John McLeod, late of Rahdolph county, on the 1st day of June, A. D. 1857, with force and arms, at and in said county, a certain writ of fi. fa. belonging to the Superior Court of law, for the said county of Eandolph, then and there being, then and there unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
    “And the jurors for the State, upon their oaths present, that the said John McLeod, afterwards, to wit, on the day and year aforesaid, at and in the county aforesaid, a certain process of, and belonging to, the said Superior Court of law for the said county of Eandolph, then and there being, then and there, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State.
    “And the jurors for the State upon their oaths aforesaid, do further present, that the said John McLeod, afterwards, to wit, on the day and year aforesaid, at and in the said county, a certain writ of execution against him, the said John McLeod, for the sum of one hundred and seventy-one dollars and three cents, issued from the said Superior Court of law, for the said county of Eandolph, and belonging to the said Superior Court of law, for the said county, then and there being, then and there unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
    “ And the jurors for the State upon their oaths present, that the said John McLeod, afterwards, to wit, on the day and year aforesaid, a certain record of, and belonging to, the said Superior Court of law for the said county, then and there being, then and there unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
    The clerk of the the Superior Court testified that, as clerk of the Superior Court of Eandolph, he issued, on the 5th day of June, 1854, a writ of fieri facias against tbe defendant, which he did not place in the hands of the sheriff because the defendant so requested, but held it up so as to give him an opportunity to pay it off without further cost; that on the 8th of August, the defendant paid him $100, which he endorsed on the back of the execution, he also gave the defendant a receipt for the same ; that on the 27th of September, 1854, he called and paid him the balance, and the witness gave him a receipt for $171,03, the whole amount of the execution, forgetting to.take up the receipt for one hundred dollars. The witness went on to state the circumstances under which the defendant secretly took the fi.fa. from the office table where he had laid it but a moment before, and under which it was found upon his person immediately thereafter, but as the remainder of the testimony does not conern the questions considered in the opinion of the Court, it is not deemed necessary to detail it. The defendant’s counsel insisted that the facts, as proven, did not support the allegations of the bill, and called upon his Honor so to charge the jury; which was declined by the Court. The defendant excepted. A motion in arrest of judgment was made in the Court below and overruled.
    Yerdict for the State. Judgment, and appeal by the defendant.
    
      Attorney General, for the State.
    No counsel appeared for the defendant in this Court.
   Pearson, J.

The first, second and fourth counts are defective in this — no description of the thing stolen is given— “ certain writ of fi. fa., belonging to the Superior Court”— “ a certain process of, and belonging to, the Superior Court”— “ a certain record of, and belonging to, the Superior Court,” is too vague. In State v. Kent, 3 Hawks. 618, the thing is described as a certain twenty dolla/r bank note, on the State Bank of North Carolina. So in State v. Boon, 4 Jones’ Rep. 466, it is agreed that “ a certain piece of gingerbread,” without stating the owner, for the purpose of identification, would be too vague on an indictment for larceny, and the decision is put on the ground, that the averment of an intent to defraud a particular individual out of the piece of gingerbread, was sufficient to identify it. In all the cases, it is held to be necessary, that some description, sufficient to identify the thing, with certainty to a general intent, should be given, although a particular description is not required, as the thing may not be susceptible of it; for instance, a hog may be described by averring the owner, although it is very general, as the man may own one hundred hogs ; and a bank note, by averring its denomination and the bank that issued it, although it may have in circulation a thousand notes of the same denomination. - Such general description is allowed ex meessitate. In this case, there is no description, and judgment must be arrested on these counts.

The third count, in the opinion of the Court, is good. The amount of the execution, and the fact, that it was against John McLeod, sufficiently identify it. But this count alleges that the execution was issued from the Superior Court. This allegation is not proven; on the contrary, the proof is, that it was not issued; for, although the witness says that he issued it on oth day of June, 1854, yet he explains it, by stating that he filled it up and retained it at the request of the defendant, who paid it, and so it never left the offiee. It is settled by the decisions of this Court, that a writ, or execution is not issued until the clerk hands it to the sheriff, or to the party, or his agent. It is evidently used in this sense, Bev. Code, ch. 45, sec. 29, “ The clerks of the County and Superior Courts shall issue executions on all judgments, unless otherwise directed by the plaintiff, within six weeks, &e.”

By reason of this variance, the conviction of the defendant was erroneous, and he is entitled to a venire dje novo.

Whether the paper, which was filled up by the clerk, falls within the meaning of the statute, we are not at liberty to decide.

Pee Cueiam, Judgment reversed.  