State v. Boyce
| Decision Date | 23 December 1891 |
| Parties | STATE v. BOYCE. [1] |
| Court | North Carolina Supreme Court |
Appeal from superior court, Burke county; W. A. HOKE, Judge.
John Boyce was convicted under an indictment for cutting and carrying away certain timber from the land of another, and appeals. Reversed and remanded.
The other facts fully appear in the following statement by MERRIMON, C.J.:
The indictment charged the defendant did unlawfully and willfully enter upon the land of the prosecutrix, he (the defendant) not being the owner or bona fide claimant thereof, and did carry off of the land certain wood, to-wit, shingle blocks growing and being thereon; and in another count he was charged with carrying off certain wood growing on said land to-wit, shingle blocks, the property of the prosecutrix against the form of the statute, etc. The evidence tended to prove that in October of 1887 the prosecutrix leased to the defendant, for the term of three years, seven acres of land "indicated by certain natural points and objects," that fixed the limits thereof, the same being a part of a larger tract, containing 35 acres, and he was expressly forbidden to cut any timber outside of the land leased to him. The evidence further tended to prove that the prosecutrix claimed to have title to the land by virtue of a deed from her father, and that the defendant, while his said lease was current, cut certain shingle blocks upon the land outside of that embraced by his lease, etc. The defendant offered in evidence a grant to one Hemphill, embracing the land above mentioned, "dated in 1857, and [to show] that in fact the said Hemphill was the actual owner of said land, and at that time entitled to the possession" thereof, and that the father of the prosecutrix had no title to the same, or any part thereof. He offered, further, to prove that he was authorized and employed by the said Hemphill to cut the shingle blocks mentioned on the land, and that he did cut them as his agent and employe, etc. The court admitted this "evidence for the purpose of showing that the defendant was a bona fide claimant of said land, but would not admit it for the purpose of proving title in Thomas L. Hemphill or disproving the title of" the prosecutrix. The defendant excepted, "and proceeded to introduce the evidence for the purpose of showing that he was a bona fide claimant, and acted in good faith," etc. There was evidence tending to show title to the land in Hemphill, that he employed the defendant to cut the shingle blocks, and that the latter cut them as his employe, etc. The defendant requested the court to instruct the jury that if Hemphill was the owner of the land, and the defendant cut the shingle blocks as his employe and by his instructions, then defendant was not guilty. The court refused to so charge, and defendant excepted. The court instructed the jury that the defendant having taken the lease and entered upon the land embraced by it, "the law would not permit him, during the continuance of the lease and the relation growing out of it, to assume a position antagonizing the right and title of defendant's lessor, and that, so far as the defendant in the case is concerned, they would consider [the prosecutrix] as the owner of the property; and, the defendant having admitted that he cut and carried away the wood and timber from said land outside of the seven acres leased, without the consent of [the prosecutrix] and after being forbidden so to do by her or her agent, his guilt or innocence would depend on the good faith of his claim of right." The court further instructed the jury that if the defendant cut the timber under the honest belief that he had the rightful authority so to do, he would not be guilty, etc. There was a verdict of guilty, and judgment thereupon, from which the defendant appealed to this court.
S. J. Ervin, for appellant.
The Attorney General, for the State.
MERRIMON C.J., (after stating the facts.)
The defendant is indicted for a violation of the statute (Code, § 1070) which prescribes, as to offenses like that charged, that "if any person, not being the present owner or bona fide claimant thereof, shall willfully and unlawfully enter upon the lands of another and carry off or be engaged in carrying off any wood or other personal property whatsoever, growing or being thereon, the same being the property of the owner of the premises, or under his control, keeping, or care, such person *** shall be guilty of a misdemeanor." It is to be observed that the person who may be charged with the offense thus prescribed must be a person--First, who is not the owner of the land from which the wood or other personal property shall be taken; or,secondly, a person who is not a bona fide claimant thereof. A charge against such owner or bona fide claimant cannot be sustained at all. Evidence must be produced on the trial to prove that the prosecutor or the person charged to have been injured was the owner of the land at the time of the carrying off of the wood or other personal property; that he was at least then in possession thereof by himself or another, claiming it as his property. Surely, then, the defendant has the right to show--First, if he can, that he is the owner of the land, and therefore not subject to such charge. How can he do this but by showing in some proper way that himself is the owner? He has the clear right to show title in himself, if he can. And, secondly, if he cannot show perfect title, he has the further right to prove facts which show that at such time he was the bona fide claimant thereof. The offense created is of such nature as to render it necessary for the defendant, and to allow him to show title to the land in himself, or to prove that he was the bona fide claimant of the same. The purpose of this statute is not to prevent a simple trespass on the land affecting merely the possession, but to prevent the taking of wood and other personal property, as prescribed, that belongs to the owner of the land or of which he has the control, care, and keeping, from the land of which he is the owner in some way. It is no part of the purpose of the statute to prevent the real owner, though not in possession, from asserting his rights to have possession, control, and benefit of it in any lawful way within his power, or to prevent such owner out of possession from taking it in any proper way, and taking from it, as he may see fit, wood and other property that may belong to him. The chief purpose is to prevent persons who have no right or title to the land, and no bona fide claim to it, from carrying from it wood and other personal property not their own. This statute (Acts 1866, c. 60) was first enacted soon after the late civil war, to prevent and suppress a very common public grievance then prevailing, which is pointed out in State v. Crawley, 103 N.C. 353, 9 S.E. Rep. 409.
An essential quality of the offense so prescribed is that it shall be committed by some person other than the owner of the land or a bona fide claimant thereof, and that it shall be done willfully and unlawfully, and it must be so charged in the indictment. Hence, if the owner of the land sends his servant or employe on the same to cut timber and take the same off, such servant would not be guilty of the offense. In that case he would not take it willfully and unlawfully, in contemplation of the statute. This is so because the owner had the right to send his servant to cut and take the timber from his own land. In this case the court instructed the jury that the prosecutrix, and not Hemphill, etc., and the evidence of title to the land in Hemphill was received only as tending to show such good faith on the part of the defendant. In this there is error. The evidence of title in Hemphill should have been received, not simply for the purpose of showing good faith of the defendant, but as well for the purpose of showing title to the land in Hemphill. If the latter was the owner of the land, as the evidence, in one view of it, tended to prove, then the defendant was not guilty, because he cut the shingle blocks under the direction of and for such owner, and in this view no question of good faith could arise. As we have seen, the defendant had the right to prove that the prosecutrix was not the owner of the land; that Hemphill was at the time he cut and took the timber; and he could show such facts by producing evidence of his title. He could not make such defense otherwise. In State v. Crosset, 81 N.C. 579, the defendant was indicted under a some what similar statute, (Code, § 1120,) and he was allowed to show title to the land in question in a railroad company under and for whom he did the acts for which he was indicted. See, also, State v. Bryson, Id. 595; State v. Crawley, supra; State v. Winslow, 95 N.C. 649. If Hemphill had been indicted with the defendant or alone, is it not clear that he might have shown that the land was his, and he thus had the right to cut the timber? And if he should show title, would not this be a good defense for himself and his servant? How could he show that the land was his, he being out of possession, but by producing evidence of his title? Can it be possible that he might, under the statute, be convicted for cutting and taking his own timber from his own land? It is said that he might be excused in that case upon the ground that he was a bona fide claimant. The jury might not believe he was such claimant. If he was the owner of the land he could defend himself successfully without being exposed to the hazard of showing what the jury might or might not regard as a bona...
To continue reading
Request your trial