State v. Yellowday

• Decision Date: 23 March 1910
• Citation: 67 S.E. 480,152 N.C. 793
• Parties: STATE v. YELLOWDAY.
• Court: North Carolina Supreme Court

67 S.E. 480

152 N.C. 793

STATE v. YELLOWDAY.

Supreme Court of North Carolina

March 23, 1910

Appeal from Superior Court, Wake County; W. R. Allen, Judge.

Simon Yellowday was convicted of unlawfully and willfully entering on land, and he appeals. Affirmed.

Where on a trial for unlawfully and willfully entering on land of another, the evidence showed that accused had been convicted for a similar offense, and there was nothing to show that accused's entry complained of was made under an honest belief that he had a right to enter, failure to charge on the issue of whether he entered in good faith was not erroneous.

Douglass & Lyon, for appellant.

Attorney General Bickett, for the State.

WALKER J.

The defendant was charged, before a justice of the peace, with the crime of unlawfully and willfully entering upon land after being forbidden to do so, contrary to the provisions of Revisal, § 3688. The affidavit, upon which the warrant issued did not state, in so many words, that the defendant entered "without a license so to do"; and, after the jury had returned a verdict of guilty, he moved in arrest of judgment, upon the grounds that the affidavit did not contain that allegation; that the affidavit and the statement therein made were not recited in the warrant, and therefore did not constitute a part thereof; and, lastly, because the affidavit failed to charge an entry upon land, or that the land was in the possession of, or owned by, any person. We will consider these objections in the order in which they have been stated by us.

It appears from the record that the court ordered an amendment of the warrant by the insertion therein of the words "without a license so to do," but the words were not actually inserted in the complaint or the warrant by the solicitor. The order of the court, as has been decided by this court several times, was self-executing. In the case of Holland's Heirs v. Crow, 34 N. C., at page 280 Chief Justice Ruffin, for the court, says: "The variance between the relators in the petition and the scire facias is cured by the order for amendment. It is true the amendment was not actually made. But the scire facias was issued upon the assumption of the amendment, and all the subsequent proceedings were based upon the supposition that one was as properly a relator as the other, and in such cases the course is to consider the order as standing for the amendment itself." He cited the case of Ufford's Adm'x v. Lucas, 9 N. C. 214, in which it is held, as it was in the case just cited, that where, during the pendency of the suit, leave is obtained to amend the writ and change the form of action, if such amendment be not made on the record, and the suit be tried in its amended form, or as if the amendment had been actually made, this court will consider the case as if the amendment had been properly inserted in the writ, warrant, or complaint at the time the order was made by the court. This is a most just and reasonable rule, and is essential to the due administration of the law. It is analogous to the rule in equity which considers that to have been done which ought to have been done, and the defendant has no reason to complain that the amendment was not actually inserted in the complaint at the time the order was entered, because he has been fully informed of the nature of the charge against him, and has had every opportunity for presenting every defense which, if found to be true by the jury, would acquit him of the offense. He has been deprived of no substantial right, for the case shows that he proceeded, during the trial, in every respect as if the amendment had been duly made.

We find that our decisions are fully supported by those in other states. In Palmer v. Lesne, 3 Ala. 741, it was held by the court that, where leave granted to the plaintiff to amend his declaration was special, and pointed out the particulars in which the amendment was to be made, it did not require a new declaration to be filed, as in the case of an order to amend generally by filing a new declaration or adding a distinct count, in which case the law would require it to be made in point of fact, but the court will consider the leave granted as operating in itself to complete an insufficient or defective statement of the cause of action or of the specific charge made against the defendant. To the same effect is the case of Fulkerson's Adm'rs v State, 14 Mo. 49. This objection of the defendant is therefore untenable. It is not necessary that we should decide whether it was essential that the omitted words should have been inserted in the complaint, in order to make it a complete and valid charge against the defendant, as what we have said has fully answered the objection which has been made to the affidavit and warrant. We will refer, though, to the case of State v. Whitehurst, 70 N.C. 85, which seems to hold that such an averment in the affidavit upon which the warrant issued for unlawful trespass on land is not necessary. It cannot be doubted that the court had the power to order the amendment to be made. It is provided by the Revisal,§ 1467, that: "No process or other proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or set aside, for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending, shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time, either before or after judgment." See State v. Vaughan, 91 N.C. 532; State v. Smith, 103 N.C. 410, 9 S.E. 200. It is difficult to understand how the defendant was prejudiced by the omission of the words which the court ordered to be inserted in the complaint or affidavit. It is distinctly charged that he entered upon the land unlawfully and willfully; and, if...