State v. Barco

• Citation: 63 S.E. 673,150 N.C. 792
• Parties: STATE v. BARCO.
• Decision Date: 17 February 1909
• Court: United States State Supreme Court of North Carolina

63 S.E. 673

150 N.C. 792

STATE v. BARCO.

Supreme Court of North Carolina

February 17, 1909

Appeal from Superior Court, Currituck County; Guion, Judge.

L Barco was convicted of anchoring a floathouse in shoal water in violation of Revisal 1905, § 3474, and he appeals. No error.

It is not allowable to interpret what does not need interpretation and, when the words have a definite and precise meaning, to go elsewhere to restrict or extend the meaning.

This is an indictment, under section 3474 of the Revisal of 1905, for anchoring a floathouse in shoal water on the west side of Currituck Sound and more than 300 yards from the mainland.

John Forbes a witness for the state, testified: "During the year 1907 I saw the defendant in the float. He was on the eastern side of Duce Quarter Island after dark. I do not remember the month. It was after November and while he was gunning. He was aboard his floathouse, after dark. I saw the defendant hunting duck from time to time. I went there on that occasion after dark, at night. It was on the eastern side, right at the island. It was shoal water. Duce Quarter Island is an island surrounded by water. It is about 3 miles in length, and in some parts about 600 or 700 yards across. The ditch that cuts through is narrow. The creek (or ditch) at the north end is about 48 feet wide and at the south end about 60 or 75 feet. As you go out of the creek north, you go into Currituck Sound, on the south into Duce Island Bay which empties into Currituck Sound. Cannot say what is the average width, but in some places 50 to 60 or 70 feet narrowest place is 48 feet; tide there is generally by the wind. The water at the mouth is about 2 feet deep. Have never known it to be dry. Boats pass through there. After crossing the creek you come to the marsh. Then you get to woods. Part of the woodland makes down to the marsh. I was there after dark and saw Barco on his boat. I saw him aboard his floathouse one night; never saw him but one night. He was anchored right to the island. The land was cultivated. There is one house on Duce Quarter Island. I stayed there that night. Part of it is woods, and part of it is marsh, and it goes through to the other marsh. It is called 'Duce Quarter Island.' It is part of Powell's Point. It is the part of Powell's Point that goes right out into the water. There are from 40 to 50 acres that can be cultivated. There has been in my recollection 25 to 30 acres cultivated. Each end of it is marsh, and part of it is woods. I think the creek has been washed larger and larger for years between the island and the land. Several thousand live on Powell's Point. The soil is deeper and land heavier on Duce Quarter Island than on Powell's Point. It is about 3 miles long and parts of it are 600 or 700 yards wide. I guess part of it is half a mile wide. The water at average tide is about 2 feet deep. I remember hearing of Mr. Brumsey cutting a ditch there. I dont know that anybody dug the ditch. The tide passed through it."

William Barco testified: "I have been acquainted for 40 years with the creek separating this island. I never saw it dry. After you get inside of the creek, the water gets eight feet deep. Have seen five towboats go through it. The island has always been called 'Duce Quarter Island.' It is surrounded by water. The creeks flow into Currituck Sound and Duce Quarter Bay into the sound. I have seen where the creek or ditch has been cut out. The creek was very crooked. Brumsey cut through this place to get mud. I remember Duce Quarter Island and the people living on it and farming on it. There was a two-story house on it and also a house a story and a half. Gunners and fishermen have landed on it many years. The ditch was cut out to get what we call marsh turf to put under watermelons."

Mr Harrison, a witness for the defendant, pointed out on the government map and located Duce Quarter, and then testified: "When I was a boy one Mercer owned the place and cultivated and lived on it. Duce Quarter was the same place as I pointed out on the map. Mercer lived in the two-story house, near Duce Quarter Bay, on the mainland side. I went up this little bay in front of his house, and he had cut through a large body of marsh to get to his house. I could see no place cut through at that time. It was marsh grass there. It was all bull grass marsh. This was about 1846. It was called 'Duce Quarter.' Part of the land was in cultivation, and part was fenced off for stock. My father and I started some time between 1862 and 1871 to pass through the slough between Duce Quarter and Powell's Point in a boat 20 feet long and 5 or 6 feet wide, and we could not pass, as the stream between Duce Quarter and Powell's Point was not wide enough to pass through. At this time Mercer had a store and fish market on this island, and there was a bridge built across this ditch to cross over. It was part of Powell's Point. I never heard it called 'island' then. The bridge was not more than seven or eight feet wide and buggies and carts could cross it. It is on the west side of Currituck Sound. The land was in cultivation before I was born. I have been there buying corn. Fishermen and gunners all stop on the east side of Duce Quarter. I...