State v. Ellen

• Decision Date: 31 January 1873
• Citation: 68 N.C. 281
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN ELLEN and others.

68 N.C. 281

STATE

v.JOHN ELLEN and others.

Supreme Court of North Carolina.

January Term, 1873.

Where A, under a contract of purchase, claimed a tract of land, in the possession of, and also claimed by B, and entered upon and took temporary possession of a cabin on the land, though forbidden by B to do so: Held, that A was not indictable under the Act of 1865-'66 for a wilful trespass.

( State v. Hank and Durham, 66 N. C. Rep. 612, cited and approved.)

INDICTMENT for wilful Trespass, tried before Mitchell, J., at the Fall Term, 1872, of ASHE Superior Court.

The defendants were indicted, under the Statute of 1866, chap. 60, for a wilful trespass on the lands of one Mary Miller, after having been notified, and forbidden to do so. The prosecutrix claimed the right of possession of the land whereon the trespass was committed, in consideration of her husband having claimed it, and held it adversely and cultivated it continuously from the year 1860 to the time of his death; since which time, she and one Jonathan Miller, coguardians of her children, have held the land and cultivated it for the children's benefit. Such was the only evidence of her title and that of the children.

The defendants claiming title under a contract of purchase from one Waugh, in January, 1872, entered upon the land against the consent of Mrs. Miller, and after being forbidden, and took temporary possession of a cabin, which was being erected on the land. From this they were ousted, and departed, taking with them some articles they had placed in the cabin.

His Honor being of opinion with the defendants, so instructed the jury, who returned a verdict of not guilty. Motion for a new trial; motion overruled. Judgment, and appeal by the State.

Attorney General Hargrove, for the State .

Todd, for defendant .

BOYDEN, J.

As we understand the case, his Honor was right in giving judgment for the defendants upon the case agreed; and his Honor could not have given judgment against the defendants, without substantially disregarding the decision in the case of the State v. Hanks et al., 66 N. C. Rep. 612. Indeed, that was a much stronger case against the defendants, as in that case, the son of the prosecutor, who had cultivated the field invaded for two years, was actually present forbidding the entry which might have resulted in a breach of the peace; and in that case, as intimated in the opinion of the Court, had the title to the land been in the prosecutor, the defendants would have been liable to a...