State v. Earp

• Decision Date: 17 October 1928
• Docket Number: 241.
• Citation: 145 S.E. 23,196 N.C. 164
• Parties: STATE v. EARP et al.
• Court: North Carolina Supreme Court

145 S.E. 23

196 N.C. 164

STATE v. EARP et al.

No. 241.

Supreme Court of North Carolina

October 17, 1928

Appeal from Superior Court, Wake County; Cranmer, Judge.

Clifton Earp and another were convicted of forcible trespass, and they appeal. No error.

The defendants were convicted of forcible trespass. The evidence of James Johnson, prosecuting witness, for the state, was to the effect That he rented a farm on halves from J. J. Norris, at Holly Springs, in Wake county, N. C.; he furnished the stock and did the work. Norris owned two places. On the place Johnson lived, which he rented from Norris, there was no barn, or stables, or crib. There was a strip of land between this place and the other place owned by Norris; on this place there was a barn and stables, which were rented to Johnson to keep his stock in, in connection with the other place. He was in possession of same on January 20, 1928; had his mules fodder, and raw food in the stables, and corn in the crib. The stables were locked by Johnson. This was the third year Johnson had been in possession of the stables. Clifton Earp had moved on the place on January 17th, where the barn was located. He told Johnson, prior to the 20th, to clear the barn and get the mules out, as he wanted to put his feed and mules in. Johnson told him he had the place rented for the year and he could not do it. "He [Clifton Earp] said he would give me three days to get them out. About 15 minutes to 12 o'clock on January 20th, I met Clifton Earp and he said, 'I told you to get those mules out of there by 12 o'clock,' and also said, 'If you do not get them out, I am going to catch them and turn them out.' I forbade him from interfering with anything in there, or on that lot or barn, because it went with the farm. He said 'You heard what I said.' I said, 'If you want my mules out, you get papers, and let the sheriff turn them out."'

What occurred is described by Johnson as follows:

"I went to a tobacco barn, not far from the stables, and by that time my wife came down, and I was telling her what I told him, and we were where we could see the stables, and he came out to the barn at 12 o'clock, and his brother was with him, and Mr. Norris behind them, and all three of them went down there, and he went out in front of the stables, and I said, 'Come on, he is at the stables;' and I hurried out there, and just as I walked up to the first stable door he took a hammer, and jerked the staples out, and opened the door, and I said, 'I forbid you from turning out my mules;' and I told him to catch them, and he said to me 'You catch them;' and I said, 'I am not going to do it, and I forbid you bothering it.' And I reached to hold the door, and it was dangerous, and I had it braced. Then I went around to the other door, and, when he turns loose this door, I started out, and I hurried around to the other door, and when I got there he had jerked that out and opened the door, and his brother ran up to catch that mule, and I said to him 'I forbid you from bothering with my mule,' and Ray said, 'If you say so, I will go around there and get one of your mules, and rush in there on top of mine,' and about that time Cliff walked away and went around to the other one, and by the time I got there my wife had backed back, and mule ran out, and Mr. Cliff wheeled around and went to the other door, and the other one ran out."

J. J. Norris, a witness for defendants, testified in part:

"Last year, up until in December, I lived this side of Holly Springs. I left there about the 16th day of January, and Clifton Earp moved in. There is a barn belonging to the house place, in the edge of the yard."

Cross-examination:

"Jim Johnson farmed with me for the two years, 1926 and 1927. I only had a cow. I had no stock of my own, except a cow. I furnished him stables at my house to keep the mules in and a barn to keep the feed in."

The assignments of error will be considered in the opinion.

J. C. Little, of Raleigh, for appellants.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty., Gen., for the State.

CLARKSON J.

At the close of the evidence for the state, and at the conclusion of all the evidence, the defendants moved to dismiss the action or for judgment of nonsuit. C. S. § 4643. The court below refused the motion, and in this we think there was no error.

An exception to a motion to dismiss in a criminal action, taken after the close of the state's evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the state's evidence alone, and a conviction will be sustained under the second exception, if there is any sufficient evidence on the whole record of the defendant's guilt. State v. Brinkley, 183 N.C. 720, 110 S.E. 783; State v. White, 196 N.C. 1, 144 S.E. 299.

The evidence tended to show that the prosecuting witness Johnson, was in the actual possession of the stables and barn. Johnson's mules were in the stables. The stables had been locked by him. Clifton Earp and Ray Earp, the defendants, in company with J. J. Norris, went to the stables, and Clifton Earp took a hammer, and jerked the staples out, "and opened the door," and turned the mules out, and he did the same in regard to the other stable. Ray Earp, the other defendant, was present aiding. The prosecuting witness, Johnson, was present forbidding defendants. The defendants were...