People v. Jones

The respondents were informed against under section 9167, 2 How. Stat., for willfully and maliciously injuring and destroying a stationary engine, claimed to be the personal property of Seeley McCord. The only question raised by the brief of respondents’ counsel is whether, under the evidence, the engine in question was personal or real property.

*284The engine in question rests on a brick foundation, is inclosed in a frame building, and could not be removed except by taking out one side of the building. There was unity of title as to the land and the engine. It has passed by deed of the land, and has been mortgaged as a part of the realty. The only testimony tending in any way to show an intention to treat the engine as personal property is the statement of the owner, as a witness, that he had in mind the removal of the engine. This does not show that he had formed the purpose to do so, much less does it show that, when the engine was annexed, he had any such purpose, or any intention of treating it as personalty. It is clear that the property described in the information was real estate. It is true the intent of the owner is often of controlling influence in determining whether a fixture is or is not a part of the real estate; but the intention must relate either to tho time of annexation or to some actual or constructive severance.

We need not discuss the question whether malicious injury to real property is punishable at common law, as the information charges malicious injury to personal property, and cannot be supported by evidence of a different offense.

The circuit judge should have directed a verdict. Judgment reversed, and respondents discharged.