98 S.E.2d 885 (N.C. 1957), 580, State v. Cooke
|Citation:||98 S.E.2d 885, 246 N.C. 518|
|Party Name:||STATE, v. Phillip COOKE. STATE v. Leon WOLFE. STATE v. George SIMKINS, Jr. STATE v. Joseph STURDIVENT. STATE v. Samuel MURRAY. STATE v. Elijah H. HERRING.|
|Case Date:||June 28, 1957|
|Court:||Supreme Court of North Carolina|
George B. Patto, Atty. Gen. and Robert E. Giles, Asst. Atty. Gen., for the State.
[246 N.C. 520] J.Kenneth Lee, Major S. High, Greensboro, C. O. Pearson, and William A.Marsh, Jr. Durham, for defendant appellants.
The crime of which defendants stand convicted is the entrance without a bona fide claim of right on land in the possession of another after having been forbidden to so enter. The act is made a crime by statute, G.S.s 14-134. The statute carries the heading 'Trespass on land after being forbidden * * *.'
'* * * every unauthorized, and therefore unlawful, entry into the close of another, is a trespass.' Dougherty v. Stepp, 18 N.C. 371; Armstrong v. Armstrong, 230 N.C. 201, 52 S.E.2d 362; Lee v. Stewart, 218 N.C. 287, 10 S.E.2d 804; Brame v. Clark, 148 N.C. 364, 62 S.E. 418, 19 L.R.A., N.S., 1033.
By the common law an unauthorized entry on the lands of another was redressed by civil action, but where the entry was made by means of force or threats apt to disrupt the peace, the trespass was made a crime in England prior to Sir Walter Raleigh's ill-fated attempt to establish a colony on our shores. Such a disturbance of possession is a statutory crime under our laws. G.S. § 14-126. To convict one of the crime of forcible trespass, it is essential for the State to establish an entry with such force as to be 'apt to strike terror' tothe prosecutor whose possession was disturbed. It is necessary to allege and establish actual possession in the prosecutor. State v. Simpson, 12 N.C. 504; State v. McCauless, 31 N.C. 375; State v. Ray, 32 N.C. 39; State v. Laney, 87 N.C. 535; State v. Davenport, 156 N.C. 597, 72 S.E.7. Whether the right to possession was a good defense at common law was left unsettled in State v. Ross, 49 N.C. 315.
In 1866 the Legislature made it a crime to invade possession even though the forbidden entry was made without force or threats. Good faith in making the entry is a defense. State v. Wells, 142 N.C. 590, 55 S.E. 210; State v. Crosset, 81 N.C. 579; State v. Hause, 71 N.C. 518; State v. Hanks, 66 N.C. 612. But possession is an essential element of the crime. If the State fails to establish that prosecutor has possession (actual or constructive) no crime has been established. State v. Baker, 231 N.C. 136, 56 S.E.2d 424; State v. Faggart, 170 N.C. 737, 86 S.E. 31; State v. Yellowday, 152 N.C. 793, 67 S.E. 480; State v. Whitehurst, 70 N.C. 85.
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