State v. Baker
| Decision Date | 23 November 1949 |
| Docket Number | 434 |
| Citation | 56 S.E.2d 424,231 N.C. 136 |
| Parties | STATE v. BAKER. |
| Court | North Carolina Supreme Court |
This appeal involves three criminal actions which originated in the Recorder's Court of Wake Forest, and were carried thence to the Superior Court by appeals of the defendant. The cases were consolidated by consent in the Superior Court, where trial was had de novo on the original warrants. ythe first two warrants were based on criminal complaints drawn under G.S. s 14-134, which charged the defendant with trespassing on two separate occasions upon the lands of the New Bethel Church, a religious congregation after being forbidden to do so by its duly constituted officers. The third warrant was supported by a criminal complaint drawn under G.S. s 14-160, which charged the defendant with wantonly and willfully injuring 'personal property belonging to New Bethel Church.'
The State presented no documentary evidence to show any title in the New Bethel Church. It did introduce oral testimony however, indicating that the New Bethel Church laid claim to two tracts of land adjoining a public highway known as the Raleigh Road in Barton Creek Township in Wake County; that the first of these tracts contained a church building and had been in the actual occupation of the congregation for upwards of fifty years; that the second of these tracts, which embraced about two acres, had been purchased from Zelma Rudd in May or June, 1947, and lay between the farm of the defendant and the Raleigh Road; that the officers of the New Bethel Church forbade the defendant to enter upon the two-acre tract, and there-after, to wit, on August 17, 1948 and October 1, 1948, the defendant traveled to and fro thereon between his farm and the Raleigh Road; that thereafter, to wit, on January 4, 1949, officers and members of the New Bethel Church erected a barbed wire fence along an edge of the two-acre tract to preclude its use as a way by the defendant, and two hours later the defendant tore down the fence; and that the two-acre tract was not in the actual possession of anybody during the times in controversy, except for two or three hours on January 4, 1949, while officers and members of the Church were engaged in the erection of the barbed wire fence mentioned above.
The defendant introduced a duly registered deed dated December 9, 1939, whereby J. K. Ray and his wife, Iola Ray, purported to convey to the defendant in fee simple eighty acres of land adjoining the Raleigh Road and the first tract claimed by the New Bethel Church in Barton Creek Township in Wake County. The defendant presented oral testimony tending to show that the eighty acre tract embraced the locus in quo; that he had been in the actual possession of the locus in quo and all other portions of the eighty acre tract at all times since December 9, 1939, under a claim of fee simple ownership based upon his deed; and that he had torn down the barbed wire fence because it had been erected by the prosecutor against his will upon the land occupied and claimed by him under his deed, and interfered with his use of such land.
The jury found the defendant guilty in all three cases, and the court pronounced judgments of imprisonment upon the verdicts. The defendant excepted and appealed, assigning as errors the refusals of the court to nonsuit the actions under G.S. s 15-173.
Attorney-General Harry M. McMullan and Assistant Attorney-General T. W. Bruton, for the State.
M. Hugh Thompson, Durham, and J. J. Sansom, Jr., Durham, for defendant, appellant.
The criminal complaints underlying the first two warrants charge the defendant with trespass on the land of another after notice or warning contrary to a statute, which was enacted in 1866 and which is now codified as G.S. s 14-134. The portion of the statute germane to this appeal is in these words 'If any person after being forbidden to do so, shall go or enter upon the lands of another, without a license therefor, he shall be guilty of a misdemeanor, and on conviction, shall be fined not exceeding fifty dollars, or imprisoned not more than thirty days. ' G.S. s 14-134.
Various criminal trespasses to land and fixtures are known to the law. Some are common law crimes, and others are legislative creations. State v. Phipps, 32 N.C. 17; State v. Love, 19 N.C. 267; State v. Flowers, 6 N.C. 225; State v. Trexler, 4 N.C. 188, 6 Am.Dec. 558; G.S.Ch. 14, art. 22. They fall into three classifications when tested by their social objectives.
Some, e. g., the crime of unlawfully cutting, injuring or removing another's timber as defined by G.S. s 14-135, are offenses against the freehold rather than the possession, and in them ownership of the property by the prosecutor is a sine qua non to conviction. State v. Boyce, 109 N.C. 739, 14 S.E. 98.
Others, e. g., the misdemeanor of forcible trespass under G.S. s 14-126, are designed to protect actual possession only, and in them it is no defense that the accused has title to the locus in quo if the prosecutor be in actual possession of it. State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Campbell, 133 N.C. 640, 45 S.E. 344; State v. Fender, 125 N.C. 649, 34 S.E. 448; State v. Webster, 121 N.C. 586, 28 S.E. 254; State v. Howell, 107 N.C. 835, 12 S.E. 569; State v. Marsh, 91 N.C. 632; State v. Laney, 87 N.C. 535, 536. It is said in cases involving this class of criminal trespasses that 'if the defendant has a better title than the prosecutor to the premises or to the possession thereof, he can assert it by due course of law, but he cannot do so by violating the criminal law of the State. ' State v. Hovis, 76 N.C. 117.
There is yet another category of criminal trespasses to realty. It embraces offenses intended to protect possession, regardless of whether it be actual or constructive in its nature. State v. Reynolds, 95 N.C. 616. Actual possession is a tangible fact, and constructive possession is a legal fiction. Actual possession of land consists in exercising acts of dominion over it, and in making the ordinary use of it to which it is adapted, and in taking the profits of which it is susceptible. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347. Constructive possession is that theoretical possession which exists in contemplation of law in instances where there is no possession in fact. When land is not in the actual enjoyment or occupation of anybody, the law declares it to be in the constructive possession of the person whose title gives him the right to assume its immediate actual possession. Ownbey v. Parkway Properties, Inc., 222 N.C. 54, 21 S.E.2d 900; Mitchell v. Bridgers, 113 N.C. 63, 18 S.E. 91; Graham v. Houston, 15 N.C. 232.
In prosecutions for criminal trespasses of the second class, i. e., those which are offenses against actual possession only, the title is not in issue, but the State must prove actual possession of the premises by the prosecutor as an indispensable element of the charge. It inevitably ensues that the prosecution fails in such cases for defect of proof if the evidence discloses that the accused and not the prosecutor actually occupied the locus in quo at the time in controversy.
These observations apply with equal force to prosecutions for criminal trespasses of the third category, i. e., offenses against either actual or constructive possession, unless such prosecutions be founded on entries upon vacant land. In the last mentioned eventuality, the title is in issue for the State cannot prevail, in such case, without showing the constructive possession of the prosecutor as an essential ingredient of the accusation, and to do that, the State must establish title in the prosecutor at the time of the alleged offense. State v. Reynolds, supra. In consequence, the prosecution fails in this instance for defect of proof if the testimony reveals that at such time the accused and not the...
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