State v. Dula

• Decision Date: 09 April 1888
• Citation: 6 S.E. 89,100 N.C. 423
• Parties: STATE v. DULA et al.
• Court: North Carolina Supreme Court

6 S.E. 89

100 N.C. 423

STATE v. DULA et al.

Supreme Court of North Carolina

April 9, 1888

Appeal from superior court, Wilkes county; CLARK, Judge.

The Attorney General, for the State.

DAVIS J.

This was an indictment for an assault with deadly weapons, and resisting an officer, tried before CLARK, J., at March term 1888, of Wilkes superior court. It was in evidence that H KENDALL was a justice of the peace for the county of Wilkes and as such, on the 10th day of March, 1886, upon the affidavit of one W. L. Dula, issued a warrant against the defendant Lafayette Dula for trespass upon the land of said W. L. Dula. The warrant does not state that the trespass was "after being forbidden," or "without license therefor." Written on the warrant was the following:

"I depute G. B. Walsh to execute this process, this March 10, 1886.

[Signed] A. H. KENDALL, J. P.

"Executed and returned by G. B. Walsh, deputed March 13, 1886.

"Fine, .............	$1 00
Justice's cost, .....	1 50
Officer's cost, .....	3 40
Witnesses' cost, ....	3 00
	------
	$8 90"

On the 7th day of April, 1886, the following was issued:

"STATE OF NORTH CAROLINA, WILKES COUNTY-JUSTICE'S COURT.

"State & W. L. Dula vs. F. L. Dula.

"Whereas, judgment was rendered against F. L. Dula in the above-entitled cause on the 19th day of March, 1886, for the sum of $1.00 fine, $7.90 costs, and the said Dula was given ten days to discharge said fine and costs, and the said F. L. Dula and Thomas Dula signed a written agreement to the aforesaid effect, and have failed to comply with said agreement, the time being out and expired, these are therefore to command any lawful officer to arrest or apprehend the said F. L. Dula, and bring him before the undersigned justice of the peace, that he may be dealt with as the law directs. [Signed and sealed by H. KENDALL, J. P.]"

The following is indorsed thereon: "Depute G. B. Walsh to serve this process. April 7, 1886. H. KENDALL, J. P.

The judgment in a magistrate's court, signed by H. KENDALL, is as follows: "Upon the oath of W. L. Dula, setting forth that F. L. Dula cut his timber and defaced his line, a warrant is issued against the said F. L. Dula, and was delivered to G. B. Walsh, a deputed officer of said county, to be executed on this, the 10th day of March, 1886. Warrant returnable the 13th day of March, 1886,--executed. Whereupon the defendant was produced in court, and the following proceedings were had: Case postponed to the 19th inst. Parties appeared; and trial coming on, the testimony being considered, it is adjudged that he pay a fine of one dollar, and all costs of the action, amounting to $7.90." There was evidence tending to show that the proceeding before the magistrate against F. L. Dula was for entering upon land after being forbidden; that the magistrate deputed Walsh to execute the warrant; that the second process (after the judgment of the court imposing the fine, and adjudging cost against F. L. Dula) was issued and placed by the magistrate in the hands of Walsh, with the deputation indorsed; that Walsh took the process, and, in company with three others, went to the "farm of the defendants, where they were at work, and attempted to arrest Lafayette Dula." Told him that they had come to arrest him, and take him before the magistrate to pay the bill of cost, etc. Dula said: "Where is your officer?" Walsh said: "I am the officer." He (Walsh) walked up near to the defendant Lafayette Dula, who drew back his axe "in a striking attitude, and said he would kill him if he tried to arrest him." He was within striking distance. The defendants Jesse and John Dula were present. The former ran in between them, threatening to use a knife, and the latter a pole, which he had in his hands, drawn back. Walsh did not show the process under which he was attempting to make the arrest, or tell the defendant that he had such process.

Counsel for defendants asked the court to charge the jury that the proceedings before the justice of the peace were void, and did not authorize the issuing of the process which Walsh had at the time of the alleged...