State v. Crosset

• Decision Date: 30 June 1879
• Citation: 81 N.C. 579
• Court: North Carolina Supreme Court
• Parties: STATE v. J. C. CROSSET.

81 N.C. 579

STATE

v.J. C. CROSSET.

Supreme Court of North Carolina.

June Term, 1879.

INDICTMENT for Misdemeanor under Bat. Rev., ch. 32, § 116, tried at Spring Term, 1879, of ROWAN Superior Court, before Schenck, J.

The bill was found at fall term, 1878: The jurors, &c., present, that defendant with force and arms, &c., upon the lands and premises of one Jesse W. Miller, &c., did then and there wilfully and unlawfully enter upon and fell and destroy the timber growing thereon, after being forbidden to enter upon said premises by the said Miller, and without a license from him to do so, contrary, &c.

The defendant was in the employ of the North Carolina railroad company, as section master, and acted under the orders of the company in committing the acts alleged to be in violation of law. And the company claimed the right to enter upon the land adjacent to the railroad track for the purposes mentioned in the indictment, under a deed executed by Henry Miller, the ancestor of said Jesse W. Miller, which is substantially as follows: We whose names are hereunto subscribed, and over whose lands the track of said company passes or will pass, being desirous that the road shall be constructed, and willing to lend our aid to effect this object, in consideration, &c., do hereby for ourselves, our heirs and assigns, grant, assign and give the right of way over our lands to the president and directors of said company, to be used by them so long as this corporation shall exist, for the purpose of constructing the track over our lands, and to use any part thereof convenient and adjacent thereto, which may be necessary for its construction, &c.; it being expressly understood that we reserve the right to use our lands up to the road, so that we in nowise obstruct or interfere or endanger said road, in track, or culverts, or ditches thereto belonging; or that we do not erect any buildings or stacks, or put up any other material within one hundred feet of the centre of the road; and if we or our heirs or assigns should do so, it is done at our own risk and not at the risk of the company. This deed was signed by several persons, among them the said ancestor.

The jury found a special verdict, which is set out in the opinion of this court, and upon it the court below held that the defendant was not guilty, and Dobson, solicitor for the state, appealed.

When the case was called for trial, the court on motion of defendant's counsel ordered Jesse W. Miller to be marked as prosecutor, and upon acquittal of defendant, judgment was rendered against Miller for the costs. Exception and appeal by Miller.

Attorney General, for the State .

Mr. Kerr Craige, for Miller .

Mr. J. M. McCorkle, for defendant .

ASHE, J.

The defendant was indicted for entering upon the land of one Jesse W. Miller, and blazing and felling trees on the same after having been forbidden so to do by the owner of the premises. At spring term, 1879, of Rowan superior court, the case was brought to trial by a jury, who returned a special verdict finding the following facts: “The defendant as section master of the Richmond and Danville railroad company entered upon the premises of one Jesse W. Miller after being forbidden so to do, and blazed the timber for the distance of one hundred feet from the centre of the railroad track. Henry Miller, the ancestor of the said Jesse W. Miller, executed a deed to the North Carolina railroad company for the right of way, as the defendant alleges, and also for the use of one hundred feet of said lands measured from the centre of said railroad track; but, as the state alleges, only covering the right of way and reserving to the grantor the use and enjoyment of the land up to the line of the railroad track.” They further find as a fact “that the defendant acted under orders of the North Carolina railroad company, and felled and destroyed the timber as aforesaid for the purpose of keeping leaves from falling on the railroad track and filling up the ditches, and for the purpose of letting the sun shine on the track, and so as to enable the company to have a view of said track.”

Upon the finding of the jury, His Honor rendered a judgment in favor of the defendant, from which the state appealed.

When the case was called for trial, upon motion of the defendant's counsel the court ordered Jesse W. Miller, the owner of the land upon which the alleged trespass was committed, to be marked as prosecutor; and there was judgment against him for the costs of the indictment, to which order and judgment he excepted, and from which he appealed.

The record presents two questions for our consideration; first, did the court have the authority to order Miller to be marked as prosecutor and adjudge him to pay the costs of the prosecution? and second, was the defendant guilty of any violation of the criminal law of the state in entering upon the land in question?

As to the first point:

We are of the opinion that His Honor had no authority to order Miller, the owner of the land, to be marked as prosecutor, and in consequence, none to tax him with the costs. Where a person is marked as prosecutor when the indictment is sent to the grand jury, and on the trial it appears that the prosecution is frivolous or malicious, the court unquestionably has the...