State v. Davenport

• Decision Date: 13 September 1911
• Parties: STATE v. DAVENPORT et al.
• Court: North Carolina Supreme Court

72 S.E. 7

156 N.C. 596

STATE v. DAVENPORT et al.

Supreme Court of North Carolina

September 13, 1911

Appeal from Superior Court, Gates County; O. H. Allen, Judge.

T. S Davenport and others were convicted of forcible trespass, and they appeal. Affirmed.

In a prosecution for forcible trespass by going upon land with arms and ousting prosecutor's agents in possession evidence by defendants to show their constructive possession of the part of the land trespassed upon by the possession of another part under color of title was properly excluded as irrelevant.

Aycock & Winston, Ward & Grimes, and Chas. Whedbee, for appellants.

Attorney General Bickett and G. L. Jones, for the State.

WALKER J.

The defendant Davenport and 17 others were indicted and convicted in the court below of forcible trespass in tearing down three shacks, which had been erected in a lumber or logging camp and which were each about 10 feet long and 7 feet wide, made of poles and covered with tar paper, and had been built upon the land two or three days before the alleged trespass. The defendants have appealed to this court, and now allege that the learned judge who presided at the trial committed 34 errors in his several rulings during the hearing of the cause.

The case had its origin in a dispute between the Roper Lumber Company and the Richmond Cedar Works over the title to a certain tract of land lying in that portion of the Dismal Swamp known as the "Allen Swamp," which has as its northern boundary the dividing line between this state and Virginia, along which there is a canal running east and west with the said line. A careful perusal of the evidence taken in the case convinces us that the prosecutor, representing the Roper Lumber Company, and the defendants, representing the Richmond Cedar Works, were at the time of the alleged trespass vying with each other in an effort to gain the actual possession of the premises, in order to gain some advantage in defending the title to the land. The Roper Lumber Company, by its servants and agents, had actual possession of the land known as Allen Swamp at the place where the huts had been constructed. The defendants, representing the Richmond Cedar Works, entered upon this part of Allen Swamp while the prosecutor was in actual and peaceable possession thereof, and ordered its servants and agents, who were then in charge of the same, to quit the premises. There were about 40 members of the invading force, some of whom carried axes and others guns, and, when compliance with their demand was refused, they proceeded to demolish the huts and then to burn them. There was no physical resistance made by those in actual possession of the locus in quo, who held the possession until the cabins began to fall, and then abandoned the premises to the defendants. An extract from the testimony of the principal defendant, T. S. Davenport, will suffice to show the essential facts of the case, upon which our conclusion as to the law will be based: "Ours (camps) were built eight days before the Roper Company's. The camps of the Richmond Cedar Works had been occupied all the time during those eight days and all full of men. I think there was close between 30 and 40 men who had stayed in those camps in the Allen Swamp--the camps of the Richmond Cedar Works. These camps were all close as a half a mile to the ones the Roper Company put up. When I found they were there, I took my men and went there. First went to Hawks' camp, and said, 'Hawks, I have come here to take possession of this camp. The Richmond Cedar Works sent me here to hold possession of these woods, and I am going to take possession of this camp and cut it down and burn it.' He says: 'My things are all in there.' And I said: 'I will take care of the things; get them out.' And he and Sanders got them out. They came out of the camp, and I cut the camp down and threw it on the fire. That was the end of that camp. Then I took my men and went out on down the ditch where they had just built three camps down there. That was on Wednesday. We went on to the Mathias camp. They were all standing outside of the camp, and I said, 'Mr. Mathias, are you in charge of these woods now?' He said, 'Yes.' I said, 'I am going to take possession of the camps, cut them down, and burn them up.' I told him my reason, that the Cedar Works sent me there to hold possession, and I was going to do it. He is the only man I parted my lips to. I then told him I was going to cut the camps up. He said, 'You may cut the others down, but you won't cut this one down.' I said, 'This is the best looking camp. This is the one I am going to take first.' He says: 'I'll be damned if you cut this one down.' I said: 'Boys, fall in on this camp.' Before that he leaves his door and goes back in the camp, and, as they had then commenced to tear the roof up, he said, 'Let me get my bed and things out, and then I will get out.' I said, 'All right.' Then I said, 'Boys, get in there and help him get his bed out and other things.' He had some peas on the fire, and I had the boys take those out, and I told them to take all out and take his bed and lay it out there somewhere, and then go ahead and cut the camp down."

The contention of the defendants seems to be that they should have been allowed to show that they had constructive possession of the place where the trespass is alleged to have been committed by reason of the fact that they were in actual occupation of the remainder of Allen Swamp; that the prosecutor, by its servants and agents, had unlawfully entered upon the land, which was the property of the Richmond Cedar Works, and had wrongfully withheld the same, and that, when they demanded possession of the land, they were merely asserting the right and title of the Richmond Cedar Works to the same, and had no unfriendly feeling toward the parties in possession, and did not intend to injure them.

Before entering upon a discussion of the main question involved in the case, we will refer to one technical objection made during the course of the trial by the defendants. When the solicitor had read the three indictments, the defendants moved that he be required to elect upon which count in each of the bills he would rely. The court overruled this motion, and held that it would not require the election until the evidence had been heard. The motion was not renewed at the close of the evidence. It appears that the solicitor abandoned all the charges except the one for forcible trespass, and did not prosecute for malicious injury to property, and the judge so stated in the charge to the jury.

It cannot be doubted now that the solicitor was not put to his election until the close of the evidence, or at least that the judge was not required to restrict the trial to any special count until he could intelligently do so by knowing what the evidence in the case would be. This was decided in State v. Parish, 104 N.C. 679, 10 S.E. 457, where it was said: "This court has repeatedly held that the presiding judge may in his discretion hear the evidence on a number of counts in a single indictment charging felony, or 'on a number of distinct bills, treating each as a count of the same bill,' and refuse to require the solicitor to elect till the close of the evidence for the state." It may be well doubted whether the solicitor could be required to elect in this case, as the charges all grew out of the same transaction. "The common-law rule is that, if an indictment contains charges distinct in themselves and growing out of separate transactions, the prosecutor may be made to elect or the court may quash. But where it appears that the several counts relate to one transaction, varied simply to meet the probable proof, the court will neither quash nor force an election." State v. Morrison, 85 N.C. 561. There was no error, therefore, in the ruling of the court upon the defendant's motion for an election by the solicitor.

The defendants proposed to prove how far the line of the land was from the state line, with a view of showing that the prosecutor's servants and agents had come from Virginia and squatted on the land, and had then avoided the service of process and a restraining order by crossing the line again into Virginia. They further proposed to introduce in evidence a map of the premises for the use of one of the witnesses in explaining his testimony. The witness stated that he did not require it for that purpose, as he was familiar with the land, and, further, they offered deeds and other evidence for the purpose of showing the title to and possession of Allen Swamp outside of the locus in quo. All this evidence was excluded by the court, and we think properly. The facts intended to be established by the rejected evidence were not relevant to the case. It could make no difference whether the Richmond Cedar Works owned the land or not, or whether they failed to obtain service upon the prosecutor in the suit brought for the possession of the land and for an injunction. The only question in the case is whether the prosecutor's servants and agents were in possession of the particular land on which the trespass was committed, and whether the defendants attempted to oust them forcibly and violently.

Forcible trespass is a crime against the possession, and not against the title.

State v. Fender, 125 N.C. 649, 34 S.E. 448. If the Richmond Cedar Works had a better title than the prosecutor to the premises, or a better right to the possession thereof, it should have been asserted by due process of law, and not by a violation of the criminal law of the state. State v. Hovis, 76 N.C. 118. The right or title to land cannot be vindicated with the bludgeon, but the party who claims the better title must, if it be denied or the actual...