State v. Campbell

• Decision Date: 22 September 1903
• Citation: 45 S.E. 344,133 N.C. 640
• Parties: STATE v. CAMPBELL.
• Court: North Carolina Supreme Court

45 S.E. 344

133 N.C. 640

STATE v. CAMPBELL.

Supreme Court of North Carolina

September 22, 1903

Appeal from Superior Court, Pitt County; Ferguson, Judge.

Thomas Campbell was convicted under Code 1883, § 1062, and appeals. Affirmed.

Douglas J., dissenting. This was a criminal action, tried before Ferguson, J., and a jury, at April term, 1903, of Pitt superior court. The defendant was charged, as the bill of indictment will show with willfully and unlawfully pulling down and removing a certain fence surrounding a cultivated field in the possession of one D. C. Smith. The said D. C. Smith was introduced as a witness on the part of the state, and testified as follows: "I was in the possession of the field in controversy. I cleared it and fenced it up six or seven years ago. There was about three-fourths to an acre in the field. It was about one mile from my house, and only a short distance from the lands of Betsy Clark. I first used it for my tobacco beds, and so used it for several years in succession, and while so using it I let people on Betsy Clark's lands have plants from it. Year before last I planted sweet potatoes in it, and last year I sowed it in peas. I had picked a part of the peas off of it last fall when I was taken down with the typhoid fever. When I got up from the fever I was told that the fence was gone, and I went to look, and I found that the fence had been torn down and removed. I saw some of the rails which had been taken from my fence on Betsy Clark's fence, but the most of them were piled up in her field. I heard the defendant admit on the trial before the justice of the peace that he tore the fence down and removed the rails." On the cross-examination the defendant proposed to ask this witness this question "Did not the defendant say that the field was the property of Mrs. Clark, and that he went there, tore down and removed the fence as her agent, and under her direction?" State objected. Objection sustained. Defendant excepts, and this is his first exception. State rests. Defendant was sworn, and testified in his own behalf as follows: "I live with Mrs. Clark as her tenant and agent. Have lived with her four years in succession. Mrs. Clark is eighty-two years old. I know the piece of land claimed by Smith as cultivated field. It is a small piece, about 19 by 14 yards. I have never seen anything grown there, except peas last year. I do not know that Smith gathered the peas. The woods so shaded the land they did not bear worth anything." On cross-examination this witness said: That when he went to Mrs. Clark's four years ago the field in question was surrounded by a fence. That there was a path between this field and Mrs. Clark's fence. That he had seen Smith sow his tobacco bed in this field. That he sowed his seed and put cloths over the bed like other people. Year before last Smith planted it in potatoes, and last year he sowed it in peas; but he did not know that he dug any potatoes or picked any peas. That he tore down and removed the fence. That he put some of the rails on Mrs. Clark's fence, and that he hauled some of them up near her house, and threw them out there in a pile. That he had so changed Mrs. Clark's fence as to run it around and make it include this field, and that she now has it in cultivation. The defendant then proposed to prove that he tore down and removed the fence as Mrs. Clark's agent, and under her direction. State objected. Objection sustained. Defendant excepts, and this is his second exception. The court instructed the jury that, if "they were satisfied from the evidence beyond a reasonable doubt that the prosecutor inclosed the fence six years ago, and planted tobacco beds in the field as described by the defendant, and sweet potatoes in 1901, and peas in 1902, as described by the defendant, and the defendant tore down the fence...